Sunday, September 12, 2010

Responses to Comments on my In Re Proposition 8: Perry v. Schwarzenegger Post

(to facebook readers) - You might consider opening this response note in a separate side-by-side window by the original note so you can see the comments I'm responding to. I'll paste the many comments at the bottom for those blog readers who aren't my facebook friends.  To blog readers, you might consider opening this post twice in separate side-by-side windows as well to be able to follow the comments.  Sorry my laziness (not putting the comments by my matching responses) causes more work for you.  Original post here.

Wow!  I don’t check facebook for two days and look what happens.  That’s a lot of substantial commenting!  I can’t imagine why anyone would care enough to comment on such trivial topics.  ;)  I guess I’ll take my standard approach and address each comment in sequence, starting from the comment posted one hour and eight minutes after this blog post was imported as a facebook note at 5:13 am.  Thanks all for weighing in, I appreciate your perspectives.   Two warnings:

1)    I’m sort of shortcutting establishing emotional safety with this blanket at the beginning: all my responses are directed at the written comments and none of them are directed at the comments’ authors.  At the end of the day I still like you.  If you feel squished it might be because I’m treating you as a peer/friend and will therefore stab your argument in the front. 
2)    I will engage in some levity below; though I acknowledge the gravity of these issues, I do like to have fun too and hope/request that you smile and shake your head a bit as you compose your scathing ripostes.

@Andy- yes, as noted I expected to lose most readers with the listing of sources. 

Thanks for the respect for my logical approach. 

Do I really support the side my logic seems to report- I’m not sure what you mean, please clarify.  Paint me a picture of what the sides look like. 

In the sentences beginning with “just about anything…,” what did I explain away, and in the “However, does that really…” sentence, what is “it?” 

As to your moral argument, I would first point out that it is logic based.  Having just decried that reasoning approach, it seems weird to rely on it immediately afterward.   Back to the merits- so you say there’s a negative effect of subjecting your family and children to a perpetuated moral value you view (and others who view similarly- lets call this group the Westovers) as negative.  Let’s say I concede that the effect exists.   The same argument about using the negative consequence as a basis for prohibiting conduct or privileges can be used equally against the offended.  Example: some citizens of the country, let’s call them the Eastovers, could view your occupational choice or your religious practice or your white skin or your heterosexual marriage or some other characteristic or conduct as subjecting their family and children to a perpetuated moral value they find to be negative.  Which class’s conduct and privileges should be then constrained- the Eastovers or the Westovers?  Is there a reason outside personal moral view to esteem either –over over the other –over? (the literary device is no extra charge).  If not, how is the superior moral view to be selected, and who makes the selection?  Absent solid answers to these questions, if follows that even a concession of the consequence doesn’t advance a proposal to limit the conduct/privileges of either negative moral value perpetrator. 

Following your gut or values is all nice and dandy, but doesn’t get ya all that far in the public square.  Arguing public policy in a pluralistic society under a constitutional democratic republic like unto the one we’re in requires persuading people- and unless either 1) everyone happens to agree with you or 2) you have a stellar trick for convincing lots of someones to make consequential decisions based not on their guts or the “dangers of logic,” but instead on your guts, one might find the uphill battle a mite discouragin’. 

@Ryan- You have brought out the famed Slippery Slope Scimitar (again, no extra charge)!  My parry is that you lack a substantial basis to confidently predict the continued expansion of the marriage definition.  Is it possible that polygamy, then marrying children, then marrying animals, then marrying rocks would sequentially follow expanding from [man-woman] to [man-woman or man-man or woman-woman]?  Yep.  Will it likely happen?  Difficult to discern.  Would any continued definitional expansion be causally linked to the initial expansion?  Also difficult to show.  Will it happen?  Impossible to conclusively say.  I could argue the likelihood of continued definitional expansions, but am content to point out how difficult it is to predict the future as you have done (gay marriage WOULD just be the ball at the top of the hill).  Way to depart from the cliché “tip of the iceberg” though.

Am I pro-gay marriage or pro-traditional marriage? For that you will have to wait.  I plan to publish on the subject in a month or so.

@Mike- I have been puzzling the “too long in Provo comment”- still not sure what it means.

What is the implication of your claim that non-procreative powers are secondary reasons for marriage?

Would you use the procreative sex as a basis for permitting marriage, i.e. those who have sex to procreate may marry and those who don’t may not?  I have more to say depending on your answer.

It seems that your argument restricts sex even between married couples to procreative episodes.  Though too lazy to cite the evidence, I claim that is 1) an old school view no longer supported by the church and 2) inconsistent with the practice of not only most married people but most married LDS people. 

@Leland- when I heard through a friend that you commented on my post I was excited.  In my mind you were like Justice Kennedy- I wondered which way you’d lean on these issues. 

I can’t argue with a person’s personal beliefs.  I’m going to pretend for a bit that your beliefs are instead a stated position/argument so I can evaluate it- hope you don’t mind.  If you do let me know and I’ll delete this segment.

1)    Am I correct that your argument would necessarily exclude old people and infertile folks from heterosexually marrying, as they would be unconnected to any of their own biological children?  Would you also argue against removing children from their abusive biological parents?  Would you contend against adoption, which removes parents from their biological children?  Will you lay down your resistance if, as in the scenario I posited, homosexual couples become capable of becoming the two and only two biological parents of their children?  Also, if the connection to raising children is the core value, would you oppose relationships which are connected to raising children, irrespective of parental gender? 
2)    It’s entirely fair if the only or primary basis for restricting access to marriage is willingness/likelihood/capability to reproduce.  What would be unfair and capricious would be to lay down a rule: “marriage is about reproduction, so only those who can reproduce may marry,” then grant exceptions to some incapable of reproduction but not to others.  There must be some basis for granting exceptions that is equally applied to avoid a conclusion of caprice.
3)    If that is the case, then society may continue to reject a new definition just as it has the old one, since your claim is that society’s rejection or embrace resists being controlled by the currently binding legal definition.  Either way the social consequences don’t advance a claim that definition A is superior to definition B. 
4)    Let’s for the moment concede that states can indeed define and regulate marriage and marital relationships, and that regulation can vary from state to state.  There is one significant limit- the states may not define or regulate in such a way as to deny any state citizen equal protection under the laws of the United States.  The states may grant MORE rights than the federal constitution, but they absolutely may not grant LESS- otherwise states could use their statutes or constitutions to deprive US citizens of their federal constitutional rights.  The US Constitution is supreme and trumps state laws and constitutions.  Thus, state discretion is only in one direction (broader than or irrelevant to, but never violative of, those rights guaranteed by the US Constitution).  Because the right to marry has been identified as a US constitutional right, it must have at least a minimum definition afforded to all US citizens irrespective of the state they reside in.  Though they may expand the right to marry, states may not narrow it such that it deprives their citizens of that federal constitutional right by either statute, conduct, or constitution.

@Miri- as a significant social and legal institution which deeply affects the vast majority of Americans, I can think of few matters which are more deserving of the people’s input.  Thus, it does not surprise me that people think they have to the right to vote about marriage and its definition.  It just so happens that we buy into the idea that “we the people” ceded large swaths of our power long ago into a little piece of paper called the Constitution.  For better or worse, that supreme little piece of paper has been interpreted to include a right to marry- which means that states and the people, absent a federal constitutional amendment, no longer have much say when it comes to what that means.  For better or worse, since 1803’s fateful Marbury v. Madison, our system places the power of interpreting that right squarely on the shoulders of the federal judiciary. 

Somewhat ironically in light of your criticism of the approval of traditional people, the test for unwritten constitutional rights depends in part on tradition: “Fundamental rights are those “which are, objectively, deeply rooted in this Nation's history and tradition ...” Hernandez v. Robles, 7 N.Y.3d 338, 380-381 (2006).  Also, gay marriage does threaten at least the traditional definition of marriage.  If the traditional definition of marriage is man-woman (that deduction is potentially upset by, for instance, the widespread understanding historically of polygyny as marriage), then gay marriage necessarily amounts to a redefinition, and thus a threat to at the least the stability of the definition. 

Last, whether traditional people approve can indeed be vital to determining what is constitutional.  Example: does a ¾ majority of the state legislatures (constituted of people, some whom you would likely term traditional as used in your comment) approve of a proposed US Constitutional amendment?  Whether they do or not directly impacts the text of the Constitution, and thus what is constitutional.

@Andy- I think you comprehended one of my main points!  I am encouraged that at least one reader has thus evidenced.  I was indeed getting at who gets to define marriage (specifically, the right to marry under the US Constitution). 

What is the gov’t when it denies the will of the people- 2 rebuttals.
1) First some philosophy of law/social contract and constitution theory.  In 1787 “we the people” gave up a portion of our power by social contract to the Constitution, which means that there’s a certain portion of our will that is no longer ours- namely any will which would in effect contravene that Supreme rule of law- and thus that will portion is not available to be either denied or affirmed.  Stated another way- picture ten people who have 100 "sovereignty" dollars each.  They come together and sign a contract saying they'll immediately exchange five sovereignty dollars for securing the blessings of liberty to their posterity, ensuring domestic tranquility, and providing for the common defense.  The five dollars means they agree to be subject to the judgments of the limited government created by the contract.  At the end of the process, they only have 95 bucks left!  They are no longer as fully sovereign as people in a state of nature.  To then claim that when the rule of law empowered by those sovereignty dollars violates your sovereignty can only be true for the remaining 95 units, i.e that portion of your sovereignty not already contracted away (the non-Constitutional areas of life).  [Sidenote- state law takes another big chunk of the remaining 95].  It would be like a computer engineer who's contracted to work from nine to five for pay to rebel against his boss during the workday by saying, "I'd rather build a swing set in my backyard than a motherboard; I'm a free man, now shove off."  The workman's free to spend his time as he pleases off the clock; on the clock he's bound to uphold the contract.  Similarly, it's assumed US citizens have contracted to subject ourselves to the Constitution- it is meaningless to speak of the Constitution as the supreme law of the land otherwise. Californians are part of the "we the people of the United States" and by virtue of the contract just discussed are subject to the US constitution- thus the difficulty in concluding that a properly interpreted Constitution overcomes the will of the people. 

Additionally, by failing to fight against the effect of Marbury v. Madison, we have permitted the federal judiciary to grab the power of constitutional interpretation which “we the people” might otherwise have allocated.

2) The right to marry is a federal right binding on the whole country.  Why should the will of California voters determine the definition of a right that applies nationwide?  California doesn’t command a sufficiently significant portion of the country’s population to qualify their vote as the will of the people of the United States.  If we assume for the moment that “we the people” haven’t lost to the federal judiciary that portion of power which defines marriage, shouldn’t national consensus be required to evidence the will of the people? 

Your willingness to ignore logic is interesting epistemologically.  One must rely upon logic to trust in God, as the logical deduction that because of our relationship to God and His omnibenevolence and omnipotence He will act in our best interests is necessary to meaningful faith. Also, that willingness betrays confirmation bias, i.e. logic is one way of arriving at higher grades of truth, but you begin from an assumption of possessing truth and thus use (some would say pervert) logic to establish a position rather than to seek for that position which is best merited by the sum of relevant logical arguments.  I would also challenge your ability to know that revelation you receive is true, but that would be too far afield here.

@Alex- Short answer: I don’t know.  Wish I did.  Speculation: it seems unlikely that suits against the church for refusing same-sex temple marriage would succeed.  On what law or grounds would such a suit proceed?  Private religious practice is given high deference in the federal courts, and religions are not government actors (and thus not subject to the high constitutional standards that might be binding on, say, a civil official performing a marriage).  It seems that the most proximal hazard would be loss of 501(c)3 tax exempt status, but that would merely amount to a reduction of a gov’t subsidy rather than the more egregious offense of depriving a religion of their right to exclude applicants from a religious ordinance.  As in other countries, a practical work-around if the battle heats up would be to mandate that all church members wanting to be temple or LDS clergy married get married civilly by a justice of the peace or something first.  In that case there would be even less basis for an attack, because who cares if you exclude or discriminate folks from a legally meaningless religious ordinance (as whether they are married in the eyes of the state would be resolved independent of the excluding practices of the subsequent sealing or bishop-performed hitching). 

@Matthew- my friend told me the other day that you commented, I’m glad to finally get to your first comment! 

Good call on the tension between rule of law/constitution and personal beliefs- though I would qualify that it’s a rule of law in what BYU Advancement VP and former BYU law school dean Worthen describes as “our democratic, federal, republican form of government,” but not all rule of law countries.  If you were in a dictatorship, for instance, and you happened to be the dictator, the rule of law might very well amount to an imposition of your personal beliefs on others, provided you codify them. 

I don’t think I pointed out that the prop 8 proponents punted, and indeed I don’t think I’ve pointed out much of anything about the strengths and weaknesses of Judge Walker’s opinion.  My thesis is that the debate should be about the merits of the decision rather than on whether a federal judge should be deciding.  Why?  Because though both questions are debated, the latter is much more lopsided.  I would like to understand why the church has chosen that latter question (whether a federal judge should be defining marriage) and sided with the less popular, and I would say much weaker, side.  It seems more consistent with other LDS teachings and principles, as well as with the better supported logical argument, to say that Judge Walker got it wrong rather than to say that Judge Walker shouldn’t be making the call.

@Andy- I’m proud of you for engaging a constitutional analysis despite your lack of legal background.  I think it’s good when Americans get better at understanding the constitution and its implications.

I think you’ve misplaced the focus a little bit when asking about the government’s prerogative to define and allowing people to vote to dictate the definition.  The issue there is more balance of powers (legislative v. judicial) than it is federalism (states/people v. federal gov’t).  My understanding of our system is that law making is done by the legislative branch (either directly or by representation) and that interpreting/saying what the law is is done by the judicial branch.  It would violate the separation of powers for the legislative/voting folks to invade the judicial realm by performing the judicial function of saying what the law is.  They have to be sneakier and control the judiciary indirectly by manipulating their supreme document via constitutional amendment. 

As to the state having voted- I think you missed one of my main points.  Because the right to marry is in the federal constitution, it needs a federal-level, and therefore nationwide, definition.  Allowing a state unrestricted discretion over defining marriage opens the possibility that the definition will be narrower than the federal definition, which would violate the US constitution.  The state can only define marriage in ways that don’t violate the federal definition.  The easiest way to do this is to mimic the federal definition; another candidate would be to paint a broader definition. 

@Matthew- It makes me laugh that both you and Andy have used “tyranny” to functionally demonize an opposition.  Ah, the subtle power of word choice.  I agree with your last two sentences.

@Seth- I had for my buddy Austin Baird the same jealousy you expressed .  He always seemed to get dozens of responses.  I love comments, they’re like Christmas presents or candy bars to me.  If you’re right that it’s a good sign, I’m pleased.

I concur with the “just our evolving constructs of them.” 

Does your “bottom line is…” sentence support my thesis that the debate should be whether Walker was right rather than whether he should be the decision maker?  I’m with Matt on the request to elaborate. 

@Peter- enter future snarky commenter #2!  (Matthew being future snarky commenter #1).   It sounds like you’re siding with Jefferson on the tyranny by an oligarchy of judges piece.  I made my withering attack on that position in the original note so I shan’t reproduce it here. 

To the extent that “the smart guy always wins” equals “the strongest presented position” wins, that sounds like a dang good system, ceteris paribus.  I am exceedingly curious to see what a superior system would look like.  The “a better way…” sentence doesn’t paint a concrete image and I’m struggling to picture it.  Perhaps you could start by describing the procedures and decision makers in such a world. 

@Andee- Pithily stated.  I shall address this more when responding to Jana.

@Matthew- I agree that occasionally courts make bad calls.  It seems indefensible to describe our system overall as ideal- but because I’m also hard pressed to find a better available system, I (and putatively our country) is willing to pay the cost in bad judgment calls.  In the absence of infallible men and women to fill posts requiring human judgment, in seems no system will result in the absence of some level of cost in bad judgment calls.  As we can only mitigate, rather than eliminate, such errors- it becomes the responsibility of those who want change to result from their criticisms to propose superior approaches rather than merely pointing out failings. 

@ Jana- I agree with your contention as to effect on legal identity resulting from a definition expansion. 

I don’t see the logic in your contention about homosexuals not being able to reproduce together.  What is your definition of “reproducing together”?  Since you can’t respond here I will posit what seems a reasonable dictionary definition: “the process of generating new individuals of the same kind from the parents.”  The mechanism of inheritance in sexually reproducing species (and indeed all cellular life) like ours is DNA.  Thus, is not a DNA contribution by both partners (throw in gestation by one of the parents too if you want) sufficient to make them biological parents? Picture partner A of a lesbian couple replacing the nucleus of partner B’s oocyte with her own fertilized nucleus, then either partner gestates the child.  The resulting offspring will be genetically related to both lesbian parents.  The biology here is inescapable.

You’ve also lost me on the third party discussion.  If your standard is that bringing in a third party “differentiates these couples from heterosexual unions” and that “there is a difference between reproducing via a third party,” I will make two embryologic counters, each in the alternative, followed by a normative argument. 

First counter: Will the usefulness of inherent reliance on a third party as a discriminator fail when the technology advances sufficiently to enable homosexual couples to be the two and only two biological parents of a child?  For instance, all the instructions necessary to create a human egg are contained in each somatic cell of an adult male.  Given the proper hormone and nutrient profile, totipotent cells (which as the name implies can become any type of human tissue) harvested from gay partner A could be stimulated to become eggs.  The sperm of partner B could fertilize the eggs from partner A.  The embryo (interesting sidenote- this embryo could be either male or female, while the counter situation in lesbians could only produce girls) could be implanted in a surrogate or, if you think gestation contributes to biological parentage, avoid the third parent by throwing the embryo in an artificial womb [though the device is not yet fully operational, much as the Death Star, many of its constituents are already employed.  Three examples: 1) extracorporeal membrane oxygenation (ECMO), a functioning technique and a component of an artificial womb currently used within neonatal intensive care units for very premature infants.  2) Dialysis techniques could remove waste products generated during gestation.   3) Lactated Ringer's solution can be used to replace amniotic fluid] to gestate.  Bottom line? A child with two and only two biological parents of the same sex. 

In the face of these biological possibilities, is not the natural possession of all the inheritable material necessary for procreation sufficient to conclude that homosexual couples are inherently capable of reproducing together?  Given that the gap between the current situation and the scenario I’ve described is purely technical, is there some articulable reason to wait for that technology to actualize before concluding that homosexual couples possess just as fully as heterosexual couples the essential inherent elements (i.e. the DNA) needed to reproduce together?

Second counter: If my argument that homosexual couples are inherently capable of two and only two parent biological reproduction fails for some reason, I argue in the alternative that to be fair, the standard of inherent reliance on third parties to reproduce must also be applied to infertile heterosexual couples who inherently rely on third parties.  You noted that the operative word is "inherently."  I would ask for your definition of inherent, which would engender testability.  Since you can't respond right now I will again quote a dictionary: "Existing as an essential constituent or characteristic; intrinsic." The most essential biological constituent existing that we know of is DNA.  For at least some subset of infertile couples the cause of infertility is an inherited genetic condition (such as two recessive alleles which when combined inhibit meiosis).  Because these couples/individuals' third-party reliance was DNA-inher-ited, that reliance is inher-ent.  For at the very least that subset of infertile couples whose infertility is inherent they fail to survive your standard.  Assuming that my interpretation of "inherent" is reasonable, you must either 1) abandon the reproductive reliance on a third party as a discriminator or 2) abandon the claim of being fair in applying the standard unless you would also exclude this class of heterosexual couples.

Normative: Irrespective of the success of counter 1 or 2, I question the purpose of endeavoring to find reproductive differences on which to pin exclusion of access to marriage.  Marriage traditionally is not strictly tied to reproduction.  Parties that have undergone a hysterectomy or vasectomy, elderly people incapable of reproduction (I'd point out this infertility is also inherent, as we inherit senescence genetically), emasculated individuals, etc. are all permitted to marry.  Thus, excluding homosexual people from the institution must be done on some other basis than reproductive capacity to avoid a conclusion of caprice. 

As to the third question, if I understand it right (what other adult unions are you thinking of? What do “deserve” and “anything goes” look like?), the answer is fairly straightforward.  Is a common statutory definition currently “a legally recognized union between a man and a woman?”  If so, one candidate marriage definition that wouldn’t exclude homosexual couples but would exclude at least some other adult unions would be “a legally recognized union between a man and a woman, or a woman and a woman, or a man and a man.”

@Peter- I felt glad and happy when you turned my red herring clause on me. :) Tit for tat.

I find your “if it’s not deliberately in the Constitution” scheme unworkable, because Constitutional provisions have no practical meaning outside their interpretation.  Example- say you have a right to free speech.   Does that mean you can publish your opinion about Obama or state your stance on abortion to your sister? Perhaps.  Does it mean you can punch Ralph Nader in the face?  Maybe.  Does it mean you can start a business?  It’s possible.  To find out which of these examples qualifies as an expression of free speech REQUIRES A JUDGMENT, an application of law to facts.  The constitution is absolutely impotent absent an interpretation.  Thus, quaffing about whether rights are written or not or deliberately in the Constitution or not doesn’t resolve the question of who interprets, as even explicit enumerated rights necessarily require a judgment call in order to mean anything.  Someone has got to do it- what I don’t see in your statements is who that person or entity is.  Is it Peter Brown?  Oscar the Grouch?  A magic 8 ball?  Who? 

Additionally, wouldn’t your position exclude fundamental rights not specifically enumerated in the Constitution?  Are you prepared to cast aside federal protection of the right to privacy, the right to marry, the right to travel interstate travel, and the right to procreate?  Any deliberate-ist/originalist of the ilk you’ve described must scratch those just for starters.

@Matthew- Your relevant examples bolster your equal protection claim. 

The Plessy language (separate but equal) and Brown v. Board jurisprudence are germane to this context. 

The criticism of Peter’s position about not caring about stare decisis seems merited.  I don’t see how his standards could be maintained- every time a government actor needed to make a choice, it seems they’d have to come to him for a proper view on jurisprudence and constitutional interpretation.  I for one am not comfortable with that, if for no other reason than one guy as a practical matter can’t make the number of judgment calls needed each day. 

@Peter- Why sue a federal agency rather than the state of California?  State law is subordinate to federal law in our system- it seems like you’ve reversed that hierarchy.

Same criticism as twice above on the originalist interpretation: who interprets the constitution?  Also, are you proposing using a separate system for checking the voice of the people based on the amenability of the contested issue to easy/better changing of the peoples’ hearts?  How would that determination be made in general- based on what criteria and who is the decision maker?  How was that determination made by you in this specific case- on what criteria?  These radical jurisprudential proposals are head scratchers for me.  They all seem to rely solely on Peter J. Brown to work.

@Matthew – Nada here

@Peter- once again, the assertion of original intent.  Once again, who makes the judgment call?
How is the judicial activism accusation relevant?  How is judicial activism discerned generally?  How was it evidenced in the Perry decision?  Would you prefer the patient process of rational arguments when, as Matthew suggested, Alabama (sorry for picking on you Alabama) stripped LDS temple attenders of their driver’s licenses?  If not, once again, how do you determine when to check the voice of the people quickly vs. the patient process of rational arguments, and who makes that decision? 

I hear your argument about contractual benefits and the government being interested in economic civil unions (contracts).  I think this is a viable system, as from what I understand some other countries function with a similar system. 

The term marriage has significant legal meaning under the federal constitution, under federal law, under every state law, and in all three branches of government at both the federal and state levels.  The conclusion that marriage is merely a religious term and a private matter flies in the face of these facts. 

Well all, I've got to head to regional conference with Sister Beck, Elder Holland, and President Packer.  Peace out,

The Comments

  • Andy Westover
    Interesting thoughts (though I'll admit you lost me when you started citing all of the above resources). You are definitely approaching this in very logical way, and as a logic driven person, I can respect that. My question is, do you rea...lly support the side that your logic seems to report?
    If so, this is a textbook example of the dangers of logic when it comes to personal values. Just about anything can be explained away, as you have done so well. However, does that really make it right? Because kids in a homosexual family appear no worse off than those in a heterosexual family, does that make it right? The argument I always hear is, "Well, they just want to be happy, and it doesn't invalidate my marriage if they have theirs." To that, I say, "yes and no." It does not directly affect my marriage (meaning if homosexual couple X gets married, my marriage doesn't blow-up or something). However, it perpetuates a moral value that I see as negative and subjects my family and children even more to that negative value. Values and principles, in my opinion, are crucial in our country, but appear increasingly lacking due to the power of empiricists. A similar argument might be, "It doesn't hurt me directly if they legalize prostitution in my town, because I'm not going to a hooker anyway. Let those people have the fun they desire." Does that make the situation morally right? Does that create a culture that is hostile and non-supportive of the values I espouse? It certainly does... and, in that way, it certainly affects me and my family.
    Anyway, the moral to my ramblings is, sometimes we follow our gut and our values rather than the data.
    See more
    Friday at 06:21 · ·

  • Ryan Searcy allowing gay marriage would just be the ball at the top of the hill. Next: Polygamy (FLDS are already challenging that law in Texas), marriage with children, marriage with other animals, marriage with rocks, etc. If we change marriage to include everything, it will eventually mean nothing.
    Friday at 06:40 · ·

  • Ryan Searcy I am confused. Are you pro-gay marriage or pro-traditional marriage?
    Friday at 06:46 · ·

  • Mike Mitchell Interesting blog posts, Brad. With all do respect, I think you've been in Provo way too long! Marriage is the formal institution by which God authorizes the use of procreative powers. These powers are intended for procreation and not mere pleasure. Marriage for any other reason (e.g. a sign of commitment/permanency, economic gain, social acceptance, pleasure, etc.) is secondary and essentially rhetoric.
    Friday at 06:53 · ·

  • Leland Faux
    Brad, I just want to respond to a few issues you've raised here:
    1) On reproduction, you bring up some interesting points there, but my personal belief is that children have inherent rights to be born into and raised by their biological pare...nts. I think homosexual marriage threatens those rights while traditional marriage protect them--or at least it should. (I think the way "traditional marriage" is used today does not fully represent what traditional marriage actually is--the formation of the spousal relationship for the purpose of procreating and raising children. I feel like today meaning of "traditional marriage," as a relationship between man and woman, is still too far removed from its original intent and connection to children).
    2) Also on reproduction, I don't think it's necessarily fair to say that because people who are unable or unwilling to reproduce can marry, homosexuals should be able to as well. This means that we are letting the exception drive the rule and we are therefore making the exception replace the rule.
    3) I wasn't at the meeting yesterday but I just want to add a third possibility to your "red herring" observations: these social ills may also have been caused by society's rejection of the traditional definition of marriage due to the alienation of children from the spousal relationship.
    4) On Constitutional grounds, my observations are that there are several SCOTUS decisions, both before and after Loving v. Virginia, that support the idea that states have the right to define the nature of the marital relationship within them (as state's have a vital interest in the organization of their societies) while individuals have the right to decide whether they want to enter into that relationship and with whom. Or, in other words, the individuals right to marriage is subject to the state's definition.
    See more
    Friday at 07:13 · · 1 personGreg Jeffs likes this. ·

  • Miri Gifford Shorten The things I can't understand are why people think this is something that they have the right to vote about--and why people think that gay marriage threatens traditional marriage. Pretty much every argument I've heard along those lines is a logical fallacy. The way I see it, it's simply un-Constitutional to prevent someone from marrying just because "traditional" people don't approve of it.
    Friday at 07:40 · · 2 peopleAaron Blevins and Andrea L Bowden like this. ·

  • Andy Westover
    then what is marriage? who defines marriage? is the government given that power, or is it the people? does the constitution define marriage? if not, as Brad said, how do you decide whether or not a right is being violated? The question h...ere isn't the right of people to be married, it's the very definition of marriage. Some say that a homosexual union means marriage, and others say that it does not. It is perfectly within their rights to disagree. So, the question that I think Brad is getting at, is who gets to define marriage? the people, or the government (sounds like Brad sides with government, or the judiciary). But what is the government when it denies the will of the people? Sounds like tyranny.

    But again, to me the argument is moot. If something is morally wrong, I'm perfectly willing to ignore logic. Or, since I believe in an all-knowing and all-powerful God, who has communicated these things to living prophets... perhaps it is logically to recognize that there are parts of this that I don't understand and that maybe I should put my faith in the all-knowing one, rather than in myself, the government, or anyone's seemingly air-tight logic. That sounds pretty logical to me! :-)
    See more
    Friday at 08:26 · ·

  • Alex Hulme
    before i ask you a question, i want to qualify my position. i am pro-gay rights, meaning i fully support civil unions. but my religious perspective lends me hesitation in going the full distance to marriage, and maybe this has some simila...rities to the church's position. so here is my question, which has nothing to do with the constitutionality of prop 8, and everything thing to do with a religious perspective.

    how do you think allowing gay marriage would affect the church's right to refuse marriage to whom they want? with so much hate swirling against the church in connection to prop 8, do you think its infeasible to expect there to be suits against the church for refusing gay members to marry in the temple or even be married by a bishop on the grounds of preventing their constitutional right to marry how they want? unlike other churches, where different pastors may have different views and some may refuse where others wont, the mormon church is absolute in their position against gay marriage, which prevents a gay couple from getting married in the church forever.
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    Friday at 08:32 · ·

  • Matthew Nokleby
    Andy (and others): here's what's wrong with your argument. It's okay to have personal beliefs whose logical justification won't hold up in a court of law. No belief system (religious or secular) has a purely logical foundation. But if you b...elieve in the rule of law, you cannot impose those beliefs on others until you can come up with a logical, legally-sound defense. Your personal beliefs, no matter how passionately you hold them, cannot subvert the Constitution.

    The government indeed defines marriage, since it's the institution handing out the marriage licenses. Since the Constitution mandates equal protection under the law, the government cannot discriminate in granting marriage licenses. So you need a legal, non-trivial argument that the government has an interest in prohibiting same-sex marriages. And as Judge Walker and Brad point out, the Prop 8 proponents punted; they didn't really try to present a legitimate argument. And I conclude--as do many others--that this is because the arguments tossed around during the Prop. 8 campaign hold no logical water.
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    Friday at 08:39 · · 1 personAndrea L Bowden likes this. ·

  • Andy Westover
    So, another question might be (since I lack the legal background), under the equal protection, do they have a right to the word, or the right to the privileges associated with the word? And if it is the government's prerogative to define m...arriage, isn't it reasonable to allow the people to vote to dictate the legal/government definition? Sure, this is getting into a states' rights vs federal rights debate. I certainly side with the state and believe that all rights not expressly defined in the constitution should be reserved by the states. Again, since the claim of being expressly defined comes from the equal protection clause, it certainly seems reasonable to question the viability of that argument with my questions above. If homosexual couples are receiving the same benefits as married couples (which obviously isn't the case yet, but should be), are they not being equally protected? Therefore, it does not seem that the feds should be able to lay claim on this and defer to the state. The state voted and defined marriage according to the will of the people. Seems like that is at least a semi-logical line of argument... though I'm obviously not aware of all precedents that may be out there. But even so, precedents are made to be broken.See more
    Friday at 08:56 · ·

  • Matthew Nokleby
    Andy: I think there's adequate legal precedent that "seperate but equal" is a practical contradiction. Having a seperate union for gays is not so different from having segregated schools--in theory you could mandate that they provide equal ...rights, but it's quite difficult to make that work in practice. So I argue--and I believe it's legally sound--that gays are entitled to the word itslef, not just a litany of apparently-equivalent rights.

    Yes, people get to vote, but the whole reason we have a constitution is to prevent the people from trampling over basic rights. It's called the "tyranny of the majority", and it's why a state can't pass a referendum establishing an official church or stripping a minority group of their rights to vote. When legislation runs afoul of protected constituational rights, the voice of the people loses. That's what's happening with Prop. 8. It ultimately doesn't matter how many times the people of CA voted to ban same-sex marriage. If that ban violates the US Constitution it must be struck down.
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    Friday at 09:08 · · 2 peopleLoading... ·

  • Seth Melling
    wow, brad! someday i'll be as popular as you and have this many comments every time I write. A good sign your're actually talking about something meaningful. Well there are a ton of issues at play here. I believe the constitution is on the ...side of prop 8 supporters. However, law always has to be interpreted as there is no "real" laws-just our evolving constructs of them. Kegan said, "the classic picture of the limits of this construction is the law and order philosophy in which the right is defined by the law rather than seeing the law as an imperfect, organic, in-process attempt to serve the right." Bottom line is, I believe the law "is" ("is" defined by majority of rational people) is on our side, but if not, the only thing that has failed us is the protection of the right/authority, not the authority itselfSee more
    Friday at 11:03 · ·

  • Matthew Nokleby ‎"I believe the constitution is on the side of prop 8 supporters." You say that, but as far as I can tell you give no justification. Can you elaborate?
    Friday at 12:09 · ·

  • Peter J Brown
    There is a right to speak, to worship, to assemble, press, bear arms, from unreasonable search and seizure (slavery), a speedy trial by jury, excessive bail, and lets not forget the pesky 10th amendment (where rights not retained by the fed...eral government should be contained with the state). The 14th amendment clarified that that government cannot discriminate on the basis of life, liberty, and property. The only wiggle room we have here is the understanding that marriage is a state-sponsored economic benefit--it would thus follow that the judge would be right to overturn tradition marriage laws because they deny certain individuals the right to enter into this sort of economic benefit (denial of property). California has no such problem because its civil unions laws have all but erased the economic benefit problem. The ruling was based on the fact that Proposition 8 defenders could not defend their position rationally. I agree with this but so what? Rights not retained in the Constitution are left for the people to define (whether its rational or not). The judge was in essence going against the will of the people in this case (as judges often due in pressing case law to further define what is Constitutional). The end game of this is a tyranny by an oligarchy of judges. As long as one argument looks better or more rational of paper, what this does is set a precedent that the smart guy always wins--another word for this is a technocracy. A better way is to win the heart and minds of the people and let THEM decide.See more
    Friday at 13:31 · ·

  • Andrea L Bowden I will never be able to reproduce without a third party. But what bearing does that have on my right to marry? I think the point was that ability or inability to reproduce "naturally" should not be used as an argument against homosexual marriage, since it can not be a valid argument for heterosexual marriage.
    Friday at 14:02 · ·

  • Matthew Nokleby
    Peter: Fortunately in your listing of constitutionally-protected rights you've included the equal protection guarantee of the 14th amendment. That's all the "wiggle" room you need. Since the state hands out marriage licenses with their atte...ndant benefits (NOT all of which are found in California's civil unions), they are constrained by the constitution to hand them out without discrimination. What part of this argument do you find faulty?

    It sounds like you are arguing that courts should be stripped of their ability to strike down unconstitutional laws. Not only does that fly in the face of centuries of well-settled jurisprudence, it opens the door to the tyranny of the majority. "The people" chose to enact laws that (among other things) segregated blacks from whites and forbade interracial marriages. These vile, unconstitutional laws were only overturned when the courts exercised their powers of judicial review and declared the laws unconstitutional. You aren't really advocating to remove that check on legislation, are you?

    It's true that law is complicated, and that occasionally courts make bad calls or simply rule in favor of the well-funded. But the solution is not to eliminate the courts' power to enforce the constitution. Constitutional rights are not up for popular vote, except in the case of an amendment to the (federal) constitution.
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    Friday at 14:05 · ·

  • Jana Barker Eliason
    We've chatted before about this, Brad, and I have been interested to see what others have said in response. I think that is an interesting question: Does this "wider" definition of marriage actually affect my own marriage? If I really consi...der whether or not I am actually going to be affected (AND therefore have the right to an opinion on the matter), I'd say that redefining the word "marriage" WILL affect me. It may not affect me negatively or positively - I cannot be sure - but I am currently in a legal union that means one thing under the law and, if changed, would mean another thing. Whatever it is changed to and whatever that means will affect my own legal identity. The word "marriage" is in countless federal and state statutes, so anyone who falls in that category currently will be affected by a change in that definition. As to your refuting the claim that homosexual couples can't have children: I would say that you refuted the claim that a homosexual individual can't have children, because you said he or she can reproduce through a third party. This does not refute the claim, however, that two homosexual individuals cannot reproduce together. Homosexual couples can raise children (one of my dearest friends was adopted and raised by two women), but they cannot bear children without a third party. And necessarily - in every case - bringing in a third party for homosexual couples differentiates these couples from heterosexual unions that don't inherently necessitate a third party. ("Inherently" is the operative word.) There is a difference between reproducing with your partner and reproducing via a third party. Another thing on my mind after yesterday's lecture was what we should define marriage as, then, if it cannot exclude homosexual couples. Should we say, "Marriage is between man and woman, or man and man, or woman and woman" and clarify that this only means heterosexual and homosexual couples - and no other types of adult unions? How would we create a statute that does not allow an "anything goes" definition, but still gives marital status to just those people who "deserve" the "right"?See more
    Friday at 14:14 · ·

  • Peter J Brown
    I think the reproduction this a a red herring argument. All kinds of nasty people CAN reproduce. Of course, the third party reproduction problem does bring in some potential legal issues with biological parents, but again, still a red her...ring. A better issue as hand is should the state promote unions that promote children being raised by a mother and a father as optimal. This isn't a judicial problem, it's a democratic problem. If the people feel this is inherent to good citizenship and child development, then the people have a right to promote it through the definition of marriage as the optimal state-promoted basic civic institution (I never hear it argued this way, which is shame). On the other hand, in my ideal libertarian society, the state would shy away from any sort of civic promotion--and follow the Jeffersonian ideal of "what doesn't break my leg or pick my pocket." which means that the state should get out of the marriage business altogether, and only be interested in economic civic unions (contracts) that are relational-neutral. Instead, we have this massive debate that is really a proxy for the institutionalization of a lifestyle, pitting traditionalists against those who feel wronged by tradition, and asking Big Brother to take a side.See more
    Friday at 14:16 · ·

  • Peter J Brown
    Matthew, if I'm incorrect about California's civil union laws, then I stand corrected. A simple revision to those laws takes the teeth out of the argument, however.

    And I really don't care for centuries-old jurisprudence. Go ahead and tak...e a stab at Roe v. Wade with me and that will tell you how much I care about case law setting precedent. If it's not deliberately in the Constitution, I remand the right to law-making with the people. I err on the side of democracy every time, even when they make historical mistakes. By the way, the reason we don't have slaves is because of the emancipation proclamation and the 14th amendments as passed through the federal Constitutional amendment process, and blacks can vote because of the 2 Civil Rights acts.See more
    Friday at 14:33 · ·

  • Matthew Nokleby
    Peter: IIRC, California law mandates that civil unions grant all the rights that marriages do. But that doesn't get the job done. Why? For starters, because they aren't recognized outside of CA. A same-sex couple in CA cannot file jointly o...n their federal tax return, simply because the federal government does not recognize them. So there is no simple change to CA law that will ensure equal rights. Furthermore, even if you standardize a nationwide civil union, in practice it cannot provide a seperate but equal set of rights. Unless, of course, you really believe the "colored" bathrooms were just as good as the "white" ones.

    > And I really don't care for centuries-old jurisprudence.
    This is tantamount to saying that you don't care if your desires square with the law. At least you admit it.

    > If it's not deliberately in the Constitution...
    It IS in the Constitution. The 14th admendment, the last clause of section 1. You should look it up; I highly recommend it.

    > By the way, the reason we don't have slaves is because of the emancipation proclamation and the 14th amendments as passed through the federal Constitutional amendment process, and blacks can vote because of the 2 Civil Rights acts.

    Civil rights for blacks came about by a combination of legislative and judicial actions. Yes, the 13th amendment ended slavery and the civil rights acts addressed a number of issues. But: segregation laws were struck down by the courts (Brown v Board of Education, 1954), as were anti-miscegenation laws (Loving v Virginia, 1967).

    We need a check on the voice of the people, else laws can be passed without regard for the constitution. Without judicial review, what's there to stop, say, Alabama from passing anti-Mormon legislation. Would you be content to wait for the "hearts and minds" of the people to change while in the meantime your constitutional rights are being trampled underfoot?
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    Friday at 14:57 · ·

  • Peter J Brown
    Matthew, sorry, but if the equal protection of state law is not ensured outside of state boundaries, then we might as well throw out our traditional republican concept of separation of powers. If the problem is tax returns, then sue the IR...S for due process protection, not the state of California.

    >This is tantamount to saying that you don't care if your desires square with the law. At least you admit it.
    Poor choice of words, how about, I don't care about case law if it doesn't square with an originalist interpretation of the Constitution.

    >It IS in the Constitution. The 14th amendment, the last clause of section 1. You should look it up; I highly recommend it.
    There is a right to marry another person regardless of gender in the 14th amendment? Curious. Changing the tax code to "contractual relationship filing jointly" would change your entire argument.

    Matthew, yes we do need a check on the voice of the people, but riddle me this. Your examples have been flagrant--denying people the right to vote, to worship, to exist. Not allowing someone to check married filing jointly on a tax form hardly compares (which or course you can do if you marry according to the definition of marriage, but that's another debate). Changing the hearts and minds of the people in the case would have been a much better, and much easier course.
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    Friday at 15:16 · ·

  • Matthew Nokleby
    It appears you labor under the delusion that federal tax filing is the only right denied same-sex couples. Allow me to disabuse you of this notion, which addresses the bulk of the issues in your previous post:

    > There is a right to marry another person regardless of gender in the 14th amendment?

    Sigh. I even pointed you to the particular clause. The 14th amendment guarantees equal protection under the law, from which the right for same-sex couples to marry follows rather directly. Unless you're really going to tell me with a straight face that you believe that "separate but equal" is still a viable way to dole out civil rights.

    > yes we do need a check on the voice of the people...
    You contradict yourself. You say you want to eliminate judicial review, yet you agree that we need a check on the voice of the people. What alternative check do you propose?

    > Your examples have been flagrant...
    While I admit that this is a subjective evaluation, I think that denying same-sex couples the right to marry is a flagrant violation of civil rights on par with anti-miscegenation laws. It's not as big a deal as slavery or disenfranchisement, I admit, but I maintain that it's extraordinarily important.

    > Changing the hearts and minds of the people in the case would have been a much better, and much easier course.

    I'm not sure why you would say this. It has so far been quite difficult to convince the public at large that same-sex marriage won't destroy their lives and their families. It's much easier for the courts, whose job it is to interpret the constitution, to ensure that constitutional rights are met regardless of public opinion.

    The larger point is that individuals--regardless of the specific cause--shouldn't have to wait for public opinion to turn before they get constitutionally-guaranteed rights. If you really believe in the constitution, whose eponymous Party you purport to support, you'd be happy to ensure that legislation not trample on protected rights.
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    Friday at 15:54 · ·

  • Peter J Brown
    Matthew, I'm using the tax issue because you brought it up. As far as the above, I never argued for the elimination of judicial review, I want it circumscribed around original intent. Look that up.

    >While I admit that this is a subjective ...evaluation, I think that denying same-sex couples the right to marry is a flagrant violation of civil rights on par with anti-miscegenation laws. It's not as big a deal as slavery or disenfranchisement, I admit, but I maintain that it's extraordinarily important.

    It's also on the same par with anti-polygamy laws. If you read my original post, I support what is known as the Kinsey argument (government gets out of the business of marriage and just grants contracts). But I'm also not in favor of judicial activism to do it. I prefer the patient process of rational argument to change the heart and minds.

    >I'm not sure why you would say this. It has so far been quite difficult to convince the public at large that same-sex marriage won't destroy their lives and their families.

    One way to do this is to frame the issue in a way that solves the harm in the current legal framework without disturbing the "harm" felt in the dissolution of the marriage framework. The former governor of Utah proposed a legal solution where all contractual benefits would be open to all unions, regardless of sexual orientation, but even went further in allowing non-sexual relational units to enter into these sort of civil unions as well. Most of the public was behind it--in Utah. So was the GLBT community. Most people believe that all people have the right to access the economic benefits of marriage. What they don't want disabused is the cultural concept of marriage. So let's find common ground, as way that does not amp up the culture war. I know it's out there, but too many people are interested in making sure their opponent has a stick in the eye.

    Funny thing is, I don't think the courts should approve of ANY marriage, that it's a private matter because the term marriage is a religious term anyway.
    See m


  1. Thank you so much Brad! Your responses are much like Judge Vaughn Walker's.
    It boils down to his quote, "Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples,"

    Almost everyone who has expressed disapproval of Prop 8 being overturned have done so with "moral disapproval" and no other logical or legal reason.

  2. I do not have the energy to enter the forum, but I appreciate the open dialogue that you've started Brad. That said, I do like the simple statement from 'Big Red Hammer' above. Thanks also for bringing up great points in class last night too - not enough people are willing to openly discuss controversial issues.

  3. I'm even more impressed with your comments to the comments.

    Like BigRedHammer said, the pro-Prop 8 folks fall back on 'moral disapproval' with "no other logical or legal reason."

    With all the brouhaha regarding "redefining marriage," perhaps the LDS community may one day finally reconcile the earthly and doctrinal inconsistencies of plural marriage they practice without looking quite so hypocritical.


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