Monday, February 7, 2011

Chapter 7: In Re Proposition 8: Perry v. Schwarzenegger

My day job is as a humble Teacher’s Assistant in the BYU Biology Department.  Between shifts I’m a full-time grad student at the Marriott School of Management (BYU’s Business School), and in my spare time I moonlight as a J. Reuben Clark Law School student.  [Don’t ask me how I found time to write this book, which first 120-page draft I did in a three week period during September/October].  On September 9th, after a meeting on the hydraulic fracturing research mentioned in chapter 2, I literally ran across campus from the Marriott School to the Law School to get a good seat for hearing a distinguished speaker- Mr. Charles Cooper.
The lead counsel defending Proposition 8 in Perry v. Schwarzenegger, Chuck Cooper spoke to students and faculty for an hour.  I was privileged to sit in the front row, from which position I could observe not only Mr. Cooper but other VIP's such as DC Circuit Court Judge Tom Griffith; First Quorum of the Seventy emeritus member Lance Wickman; former clerk for US Supreme Court Justices Warren Burger and Antonin Scalia, Von Keetch; J. Reuben Clark Law School Dean James Rasband; and professors Cole Durham and Lynn Wardle, among others. 

Mr. Cooper spoke for a half hour to the standing-room only crowd, focusing on faults in Walker's decision.  After discussing the history and purposes of marriage, he opened to questions.  There were many hands and little time- but amazingly after a few questions such as how homosexual marriage harms heterosexual marriage and whether the plaintiffs have standing to appeal, I was chosen.  I even got to ask two questions!  Hogging the Q and A time- selfish I know.    

My first question addressed his claim that homosexuals can't reproduce.  I refuted his claim, showing that some of them do reproduce by citing two examples (e.g. lesbian couple- partner A gets her egg artificially inseminated, then implants the embryo in partner B who bears the child.  Or, a gay couple who mix their sperm, fertilize a donated egg, then have a close friend act as surrogate).   I further noted that stimulating the germline development of totipotent cells from partner A into sperm, then using that sperm to fertilize an egg of partner B, would yield a two biological parent homosexual household.  I concluded by asking whether advancing reproductive technologies such as these would weaken his tradition-based argument.  He said no, but admitted that eventually it would if the technologies get to that point (a notable concession).  He pointed out that a third party intercessor is required.  I didn't push him on the contention that no one balks at infertile heterosexual couples doing the same or similar third-party-required procedures.  For that matter, I also refrained from the more obvious rebuttals that reproduction or likely reproduction or even potential reproduction has never been required to get a marriage license.  Even if reproduction is vital to the institution of marriage, if you'll let old people who can't reproduce (and others who aren't likely to reproduce) marry, why deny marriage to homosexual people on the basis of their reduced reproductive capacity?   Anyway, back to the story.

He continued to answer my question by citing a lengthy list of social ills, such as children growing up in single parent families, children growing up without a father, and the education and poverty and drug problems that result in those situations.  This is where he lost me.  I spent a chunk of my 2010 summer as a research assistant for a law professor researching issues such as the economic and social consequences of family breakdown.  [Let me know if you'd like my paper on this, or my thorough research on the role of courts in defining SSM, by emailing me at].  Thus, I was aware of how well documented the ills are that he cited.  However, they don't advance his position!  He's arguing for a particular definition of marriage (only a man and a woman) over an alternate (man and a woman + man/man + woman/woman).  Yet the evidence he cites is not causally linked to his advocacy of definition A over definition B.  Sure, we all agree that those social outcomes are undesirable - but they've mostly taken place during the last 40 years, during which time as Mr. Cooper noted the applied marriage definition has been the traditional one.  Thus, the most likely deduction is either that 1) other factors besides the definition of marriage caused those ills, or that 2) the traditional definition contributed to those ills.  The speculative, prospective non sequitur (it does not follow) that instead the alternate definition would exacerbate those negative social consequences is the least supported deduction of the three.  This rhetoric bears the signs of a classic witch hunt: though most everyone is upset about the breakdown of the family, you’ve pinned the tail on the wrong donkey.  Homosexuals are not the perpetrators of society’s broken homes and single parenting.  (Indeed, as The Economist argues, “the weakening of marriage has been heterosexuals' doing, not gays', for it is their infidelity, divorce rates and single-parent families that have wrought social damage.[i]”)
Thus, my follow up question appropriately demanded that he identify the nexus or link between the ills he cites and the alternate marriage definition he opposes.  I found his response, which centered on the ills resulting from general family breakdown being likely to increase because of the weakening the institution by the alternative definition, unsatisfying.  The alternate definition is not clearly a weakening of the institution- it is only clearly different.  Whether the change weakens, strengthens, or doesn't affect marriage is neither agreed upon nor well evidenced, and thus in the absence of empirical data amounts to little more than a value judgment which lacks the ability to confidently predict future consequences.  The evidence he emphasized is nothing more than a red herring effectively wielded on those unaware of the glaring gap between that evidence and his proposition.  Again, frustra probatur quod probatum non relevant- that is proved in vain which when proved is not relevant.

However, his overall position seems to be in line with the LDS church on the matter: "The Church of Jesus Christ of Latter-day Saints regrets today’s decision.  California voters have twice been given the opportunity to vote on the definition of marriage in their state and both times have determined that marriage should be recognized as only between a man and a woman.[ii]"  When I first read this, my response was: "Uh, what happened to the Constitution-loving church I thought I knew?"

I hope it is not necessary to prove that the LDS church is Constitution-affirming.  Besides the potent endorsements of the Constitution in the Doctrine and Covenants (98:5-6, 101:77-80, 109:54), President Ezra Taft Benson ("I reverence the Constitution of the United States as a sacred document. To me its words are akin to the revelations of God, for God has placed His stamp of approval on the Constitution of this land[iii]") and President Hinckley, ("The Constitution under which we live, and which has not only blessed us but has become a model for other constitutions, is our God-inspired national safeguard ensuring freedom and liberty, justice and equality before the law[iv]") while president, both unequivocally endorsed the document.  Elder Oaks recently taught, "If we oppose persons who hold particular offices or the policies they pursue, we are free to vote against them or work against their policies. But we should not carry our opposition to the point of opposing their offices, or we weaken the institution of constitutional government[v]" (2010). 

"It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is[vi]."- Marbury v. Madison.   The judicial branch determines the constitutionality of state laws and state constitutional provisions under the federal constitution.  A state law, or even a state constitution, may not deprive a US citizen of a right under the US Constitution.  If indeed there is a constitutional right to marry (as has been recognized in numerous US Supreme Court cases- see e.g. page 110 of the Perry opinion[vii]), then it is emphatically the judicial branch's job to define that right.  Opined the United States Supreme Court:
“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.  Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival... Under our constitution, the freedom to marry or not marry… resides with the individual and cannot be infringed by the State.[viii]  
An absence of a marriage definition would make the right meaningless, for one could not then discern when or whether the right is violated.  One may certainly argue that the court got it wrong, but I fail to see the defensibility of the position of a US Constitution-affirming church that the people of California should be the ones to define a federal constitutional right.  "[T]he United States Supreme Court... has the ultimate responsibility of interpreting the meaning of the lofty and general provisions of the Constitution[ix]" -Elder Oaks.  Coincidentally, Elder Wickman expressed basically the same position as the church that the legislature/people of California should be defining marriage rather than the courts during my conversation with him right afterward (which conversation also included a notable Q and A about the Oaks/Wickman Public Affairs interview on homosexuality).  I guess I don't see his/the church's logic.  It may seem odd that one man (Judge Walker) can overturn the expressed will of 13.4 million (7 million in favor, 6.4 opposed).  You may even agree with Thomas Jefferson, who in response to Marbury v. Madison said "that if this view of judicial power became accepted, it would be 'placing us under the despotism of an oligarchy.[x]'"  To Thomas Jefferson and those who contend similarly I say: you lost!  Welcome to contemporary America.  Federal judicial review of state law or conduct alleged to be violative of federal constitutional rights is how our system's been working for over two centuries now. 


In closing I 1) discuss my motivations for writing, 2) make a request of the reader, and 3) offer my closing thoughts.

Motivations for writing:
I am often asked why I care about the issues addressed in this book.  Indeed, distributing it resulted in the loss of my chosen career (BYU’s MPA program denied my appeal to reverse their refusal to nominate me for the Presidential Management Fellow program on October 31, 2010.  Despite my exceptional performance in the selection criteria categories and the glowing reviews of my supervisors at the Maricopa County Superior Court, Idaho Supreme Court, and Government Accountability Office, the MPA program decided to reject me on account of my choice to share an early version of this book).  In addition, writing and sharing this book has brought the disapproval of my parents, contributed to a girlfriend’s decision to break up with me, and led to stressful conversations with several church leaders, BYU deans, and dear personal friends.  This book was not written for a class, and no mortal person suggested the project to me.  I am not a part of any advocacy group.  To be frank, the experience has required a lot of me- physically, mentally, spiritually, relationally, and emotionally- as I have wept and researched and reasoned its pages into existence. 
The short and unsatisfying answer to the “why I care” question is that I don’t exactly remember other than that I felt called to write this.  The highest goal of my life has been to fulfill the missions my Father has for me in this mortality.  My sentiments and situation mimic Ty Mansfield’s, who at the conclusion of In Quiet Desperation wrote of his decision to attach his real name as author:
“I believe in Christ and in the fullness of the gospel, and when it comes to proclaiming both the redeeming and enabling power of His name, with this specific book and in this particular situation, I could not stand behind “Name Withheld.”  Because I’m not married, I had to take into consideration how it could affect my potential future family but, nevertheless, as I continued to ponder and pray, I knew what I needed to do, and I felt the Lord’s peace with that decision.  That is the only thing that matters to me.  So, regardless of what happens in the future concerning a family or the societal response to the convictions recorded on these pages, I know the Lord is with me and will provide a way for me to do whatever it is that He would have me do.”
I am not as confident as Ty that the ideas in my book are correct and divinely approved/inspired.  However, I feel 1) to affirm that I felt called to this task, 2) that the general endeavor was largely appropriate, and 3) that some of the content was inspired.  I don’t think I could have written this book on my own.  During the three week period that most of it was drafted, I would sometimes go to bed, then unable to sleep because of the flood of ideas of what to write and how to write it, I would arise and resume composing.  I can’t fully explain what moved me.  However, I will give three post-hoc justifications for my composing and distributing this book: timeliness, my future children, and my human side.
One reason for writing, especially the second part (SSM), is that same-sex marriage is a defining issue of my generation.  The acknowledgement that biologically-caused homosexual orientation exists is relatively new, significantly substantiated only recently, and spreading.  More and more people are choosing to come out, and more and more gay and lesbian people are openly living in lifelong committed relationships.  Due to current and improving reproductive technologies, homosexuals are gaining access to reproduction, including with each other.  Increased gender and racial equality, economic prosperity, no-fault divorce, and other changes have altered marriage from what it looked like in the 1950’s- and I doubt the institution will ever go back.  Now is the time to take a hard look at marriage from both a religious and civic standpoint and forge ahead with a marriage worthy of securing for ourselves and succeeding generations- which leads me to my next justification.
My future children:
It is my hope this reason appeals to my Millenial generation peers who are similarly situated.  The reason is this:
I plan to marry a woman and raise my own biological children soon.  One or more of those children may be homosexually oriented.  I want the world to be a place where the American dream and the LDS dream, which I believe both include the opportunity for marriage, is as bright for my homosexual children as it is for their heterosexual siblings.  Indeed, at the risk of being overly dramatic, I have a dream that someday soon my children will be judged by the content of their character and not by the color of their skin their mostly-if-not-wholly-biologically determined sexual orientation. 
Human side:
I would also say that the more human side of my motivation is one cup curiosity, one cup commitment to truth, and two cups compassion. 
Curiosity: Initially, my interest resulted from my natural curiosity (I’m a binge learner), triggered three or four years ago after I heard from a BYU professor the evidence for a biological origin of homosexual orientation.  Without a doubt, his presentation challenged my presumptions.  I was not aware of a single homosexually oriented friend at that time. 
Truth: From my LDS upbringing I have been taught, above all else, to seek for and cleave to truth- and it is to that high standard I seek, though I don’t know that I have ever attained it.  In the Epilogue of Understanding Same-sex Attraction: LDS Edition, Dennis Dahle wrote: “The greatest display of compassion, and the greatest blessing that can be given, is to find and share the whole truth of the matter.[xi] 
Compassion[xii]: As I have since looked into the science and moral arguments, I have learned of the intense, widespread, and predictable difficulties my homosexually oriented brothers and sisters experience.  In a drama the reader is likely familiar with, the character Frodo said: “I will take the Ring to Mordor. Though — I do not know the way."  Gandalf, placing his hands reassuringly on Frodo’s shoulders, responded: “I will help you bear this burden, Frodo Baggins, as long as it is yours to bear.[xiii]  That is the message I hope to convey to those of my homosexually oriented brothers and sisters who consider their orientation a burden.  1 Corinthians 12: “That there should be no schism in the body; but that the members should have the same care one for another. And whether one member suffer, all the members suffer with it.[xiv]  Per my baptismal covenant and per the human compassion God has privileged me to possess, I will help you bear your burden- as long as it is yours to bear. 

Request to the reader:
What would I hope the reader will do, feel, or think, as a result of reading this book?  Wrote Bob Rees of Carol Lynn Pearson’s No More Goodbyes: Circling the Wagons Around Our Gay Loved Ones:
“The Mormon pioneers who set out on the treacherous journey to their promised land did so because they were misunderstood, persecuted, and at times even murdered for their beliefs, including their very unorthodox beliefs about marriage.  They went to escape social ostracism and political tyranny that sought to deprive them of their right to live according to their beliefs. What sustained them was their faith and their fellowship with one another and their belief that they would find a place, “far away in the West, / Where none shall come to hurt or make afraid,” where they would not only be free of persecution but free as well to build a better kingdom for themselves and for those who would come after.
I dream of such a place for our homosexual brothers and sisters. But rather than traveling to it over plains and mountains, rather than carving it out of a desert wilderness, I believe we have to make it where we are, here and now, in our homes, in our communities, and in our congregations. It is the courage of people like Carol Lynn Pearson that gives me hope that we can—heterosexual and homosexual together—build the Zion we are called to build.[xv]
How can we build this Zion?  To answer this question, I will quote another, who wrote two decades ago[xvi]:
“As someone who loved the church but has literally chosen between life and death, I beg you to consider these points:
1)      Most homosexuality is biologically determined.  It cannot be “unchosen” once it occurs.
2)      Please allow homosexuals the choice to remain in the church on the same basis as heterosexual members, through sexual restraint rather than denial and change.  I do not ask you to approve of gay sexual relations, but it is clear that those who understand their homosexual orientation early on in an accepting environment have fewer difficulties adjusting, are less promiscuous, and have a better chance of achieving a healthy self-image and a positive lifestyle.
3)      If and until a proven method of change becomes available, the burden of guilt could be lifted from those whose thoughts and feelings are homosexual.  If the church recognized that homosexuals did not cause their condition and are not responsible for its continued existence, their self-esteem could be built and they could focus their energies on sexual self-restraint and acceptance of themselves as gay individuals.
4)      If members of the church were educated about what we currently know and do not know about homosexuality, this would alleviate much of the suffering experienced by parents, wives, children, friends, and the homosexual individual him- or herself.  Such education may help to reduce the frequency of suicide among despairing gays…
Truth is one of the cornerstones of the church.  The church should not avoid truth or make it difficult to find.  I pray that you will be part of the effort to promote honesty and truth about homosexuality.  I pray that you will help bring about a greater understanding of this difficult subject so that families can come back together, individuals may begin healing, and we may all share a brighter future of love and understanding.”   

Closing Thought:
I anticipate that my views as expressed in this book will change over time as I learn more.  Thus, all that I have written is tentative- merely a snapshot of my current thinking.  In composing it I hope that I have learned and come closer to truth- in reading it I hope you have as well.  In addition to insights about SSM and homosexuality, I hope that you walk away from this book with one additional take-home: faithful members of the LDS church need not close their hearts nor remove their critical thinking caps to practice their religion.

[i] "The case for gay marriage: It rests on equality, liberty and even society," Feb 26th 2004,
[ii] "Church Statement on Proposition 8 Ruling," August 04, 2010, available at
[iii] Ezra Taft Benson, “The Miraculous Constitution,” Friend, Sep 1987, inside front cover
[iv] Gordon B. Hinckley, “The Times in Which We Live,” Ensign, Nov 2001, 72
[v] Dallin H. Oaks, Apostle, “Fundamentals of Our Constitutions,” Utah’s Constitution Day Celebration, Tabernacle, SLC Utah, September 17, 2010.
[vi] Marbury v. Madison, 5 U.S. (1 Cranch) 137 at 177-78 (1803).
[vii] Available at
[viii] Loving v. Virginia, 388 U.S. 1, 12 (1967).
[ix] Dallin H. Oaks, Apostle, “Fundamentals of Our Constitutions,” Utah’s Constitution Day Celebration, Tabernacle, SLC Utah, September 17, 2010, pg. 6.
[x] James Taranto, Leonard Leo (2004), Presidential Leadership.  Wall Street Journal Books.  See also Thomas Jefferson to William C. Harvis, 1829 ME 15: 277. 
[xi] Dennis V. Dahle, “Return to Reason: Drawing Upon the Three Pillars of Wisdom to Address Same-sex Attraction,” in Understanding Same-sex Attraction: LDS Edition, 2009, pg. 478.
[xiv] Verses 25 and part of 26.
[xv] Robert A. Rees, Forward pg. xiv-xv, in Carol Lynn Pearson’s No More Goodbyes: Circling the Wagons Around Our Gay Loved Ones.
[xvi] Peculiar People: Mormons and Same-sex Attraction, edited by Ron Schow, Wayne Schow, and Marybeth Raynes, pg. 112.


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