Sunday, November 10, 2013

"Former LDS students are not eligible to receive an ecclesiastical endorsement"


I frequently observe a comment like this one in discussions about religious freedom at BYU:



Because this question comes up so often, I provide my answer to it here, so folks can link to it in subsequent discussions.

Hi Conner,
Yours is a sensible question: it would seem a student who leaves the LDS church would simply obtain an ecclesiastical endorsement from another source.

Unfortunately, however, the honor code plainly states: “Former LDS students are not eligible to receive an ecclesiastical endorsement.”

That policy is further underscored by the subsequent letter a BYU Student receives after tendering their resignation letter:


Dear student,
Bishop __ has informed the Honor Code Office that your ecclesiastical endorsement has been withdrawn. Since university policy requires all students to have a current endorsement, we have placed a hold on your registration, graduation, and diploma until you are able to qualify for a new one. Effective immediately, you are no longer eligible to attend daytime or evening classes, to register for other courses, to graduate from BYU, to work for the university, or to reside in BYU contract housing. You cannot enroll in or be enrolled in any BYU course that could apply to graduation, including but not limited to Independent Study courses, until you are returned to good standing. Please note that you may not represent the university or participate in any university programs such as Study Abroad, academic internships, performing groups, etc. A hold has been placed on your record which will prevent you from being considered for admission to any Church Educational System school until you are returned to good Honor Code standing. Good Honor Code standing includes a valid, current ecclesiastical endorsement.

The Honor Code Office will work with Discontinuance to remove your classes. If you have any questions please call the Honor Code Office. If you are currently working on past incomplete grade contracts please notify the honor Code Office immediately. When you are ready to return to the university, you must work closely with the Admissions Office, A-153 ASB, (801) 422-2507, regarding readmission requirements.

During at least the next twelve months, Bishop ___’s clearance must be obtained
before any other bishop can endorse you. Your Bishop must verbally notify the Honor Code Office as soon as your endorsement has been reinstated. Also be aware that you must stay in contact with the Admissions Office in A-153 ASB (422-2507) regarding readmission requirements if you are away for a full semester. Because the ecclesiastical interview is confidential, any questions regarding your church standing must be resolved with your ecclesiastical leaders. The withdrawal of your endorsement is independent of any investigation or action that may be taken by the Honor Code Office.

If you have any questions about the withdrawal of your endorsement, please contact your bishop and/or your stake president. Your classes will be discontinued immediately.

Signed,
Larry Neal, Honor Code Office Director


As I argue elsewhere, this policy unnecessarily burdens the religious exercise of LDS BYU students, and is inconsistent with our own teachings about religious freedom, as well as our own tradition of religious tolerance (think for instance of Nauvoo: we granted more religious tolerance to ex-Mormons and non-Mormons than some would expect, given LDS dominance in civic decision making).

Saturday, November 9, 2013

Religious Freedom at BYU: How it Works v. How it Should Work

"We claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may." - Joseph Smith, Article of Faith 11




Tuesday, October 29, 2013

What if the Prophet Said No? A Response to Opponents of Ordain Women

I recently posted a pro-ordain-women post on my wall:

Well documented, Rick Rampton. May Mormons near and far embrace governance equality sooner than later: the cause is just, and the proposed means (revelation to ordain women) an appropriate one. 

http://ordainwomen.org/oct-5th-mini-documentary/

Ordain Women leaders
A good friend of mine, whose opinion I value, replied:

"Brad, as you know I disagree with you on this topic. I find it telling that a willingness to submit to God's will was never mentioned. A desire to fulfill the purposes of the priesthood was never mentioned. Christ was not mentioned once in this video. "God" was mentioned only as one women claimed to be advocating His truth.

What was mentioned often was individuals' feelings. It was about the women's feelings, not the priesthood purposes. And yes, our individual feelings are important, that that's not what the priesthood is about. The priesthood is not inward-looking.

I would love to ask every one of those women this question: "If the prophet announced that he prayed about this topic, and that priesthood service is man's responsibility, what would you do?"

And Brad, I ask you that question. What would you do if the prophet announced that?"

I replied:

"Thanks for the reply, *Jessie. Certainly, a willingness to submit to God's will is a virtue under a mainstream Mormon paradigm. To answer the question directly: also under mainstream Mormon practice (correct me if you perceive otherwise), are we not obligated only to follow a pronouncement made by a prophet that is confirmed to us by the Holy Ghost? Are we not also obligated to follow much other guidance that the prophet doesn't explicitly say, but which the Holy Ghost does confirm to us? Thus, prophetic announcement is insufficient to settle a question, and I would next ask what the Holy Ghost did or did not witness to me in the hypothetical you pose.

However, we need not appeal to a hypothetical, for two reasons. First, we have an actual example we can look to: black men who pushed for ordination of all worthy males. Faithful church members made exactly the same response you just did: "I find it telling that a willingness to submit to God's will was never mentioned... what was mentioned was individuals' feelings... priesthood is not inward-looking... if the prophet announced" etc. You're likely aware that many prophets were bold to declare that they had prayed about the topic, and that priesthood service is non-black man's responsibility. Notwithstanding, that policy changed: and neither you nor I can conclusively say that advocacy or consciousness-raising or direct action were not contributing factors to that shift.

Second, and more fundamentally in my view, the whole priesthood discrimination scheme fails for a rather objective reason: Mormons have not articulated a way to discern between males and females. As the Proclamation declares, the gender we care about is spiritual gender: yet we are not justified in assuming that physical sex maps to spiritual gender. Spiritual gender is an unambiguous binary, but physical sex in the real world is a spectrum. Just as some bishops and stake presidents disagreed about whether a person was "black enough" to merit exclusion, not all LDS decision makers agree about a particular individual's spiritual sex (think SRS or intersex individuals). Any test that can be considered an accurate discernment of spiritual sex must, at the least, be a binary one. I have yet to hear a Mormon decision maker articulate such a test.

Rather than squinting at peoples' anatomy (be it their genitals or their skin pigment), I think it would be reasonable to open the governance eligibility table to all adults, without respect to sex or race. Since in our tradition priesthood is a prerequisite to general governance (e.g. stake presidencies, the Quorum of the 12, the First Presidency, Stake High Councils, etc.), ordaining women to be elders is the most parsimonious path forward, if not also the most pragmatic."

Sunday, October 27, 2013

How to Prevent a BYU Student's Eviction When She Leaves Mormonism

In a recent post, Evicted because you changed religions? Welcome to BYU, home of the International Center for Religious Freedom Pharisees, I concluded that an LDS BYU student can be evicted, under the lease, for disaffiliating (or being excommunicated) from the LDS church.



There is, however, more to the story. From a thread on the subject, one law student noted, in part:

"I decided to take this hypothetical to the office hours of both my contracts professor and my property professor. Very interesting discussion. The legality of the honor code itself is semi-irrelevant because BYU is a private university and the only party with standing to challenge their tax exemption or student access to federal financial aid is the Secretary of Education. It's a fairly safe bet that that will never happen.

Your housing, on the other hand, is highly suspect. It might not be worth it to you to challenge it, but I'm guessing the reason you don't see this case frequently is actually because complexes will cave if pressed. The Federal Fair Housing Act (and I'm assuming even Utah has a similar statute though the federal one is sufficient for your purposes) forbids housing discrimination on various grounds including religious affiliation. An exception might be found if you were renting a room in someone's house, but if you're at a complex run by a management company it certainly applies.

Here's the important part: the average tenant is incredibly uneducated about their rights and simply takes the notion of 'legally binding contract' at face value. A legally valid contract, especially a residential housing lease, can contain terms which are unenforceable for various reasons. The sorry state of affairs is that it is not illegal for a landlord to include terms which they know are unenforceable in a lease, thereby leading the uninformed tenant to cave when there is a dispute because "it's in this contract that you signed and understood!" The fact is, a term which would force you to forfeit possession while remaining responsible for the rent when your only act was to change beliefs or affiliations is not legally enforceable. This doesn't mean a hefty award coming your way or anything, but it does mean that you should go to the management company and state plainly that if they are asking you to leave for these reasons (and they can't say that it's not because you changed beliefs, but rather because you broke the honor code or lost your endorsement: a court would look to the precedent act and find those provisions of the honor code discriminatory when applied to housing) then you most certainly will not continue to pay the rent, any cancellation fee, or worry about trying to sell your contract...


The more likely outcome is that the complex drops it because 1. $800 isn't worth the effort, 2. They know they would lose anyway and be stuck paying attorney's fees, and 3. a prolonged court battle on the subject could produce some very negative publicity for both the management company and BYU."

I responded:

"*Jamie is right on. I saw the original post and worked myself into a huff about what I was going to say, but Jamie hit most of it. Yes, under the contract the landlord has a ground to terminate the contract and subsequently evict Matthew based on his upcoming disaffiliation. I detail that legal analysis here (http://bradcarmack.blogspot.com/...), based on a general off campus housing contract since "Matthew" has unfortunately not shared his own.

HOWEVER, as Jamie points out, that contract term is unenforceable because it is overcome by the federal prohibition against religious discrimination by private landlords like Matthew's. Under both the federal Fair Housing Act and the Utah Fair Housing Act (Title 57, Chapter 21, Section 5 if anyone cares 
http://le.utah.gov/code/TITLE57/htm/57_21_000500.htm), such a term would be found unenforceable when the act in question, as assumed here, is disaffiliation.

A suit has been brought before on this issue, but was dismissed for lack of standing: standing would not be lacking here though, as it is a case of religion directly affecting housing ability and Matthew could fairly easily evidence a prima facie case of religious discrimination. However, Matthew has to let the hammer fall. If he chooses to kick himself out of his apartment by selling his contract, then there's no legal harm to complain about. Similarly, kicking oneself out by withdrawing from classes, rather than forcing the institution to take action (discontinuance of enrollment), leaves fewer bruises to demand justice for. Victims need to show harm to gain redress, and that can mean waiting for the blow rather than escaping harm's way.

If Matthew wanted to vindicate his housing rights at all costs, he would have disaffiliated, then waited for BYU to take action against him by removing his active enrollment status. Then he would have (1) waited to receive an eviction notice from his landlord, then (2) submitted the Housing Discrimination Complaint (
https://portal.hud.gov/FHEO903/Form903/Form903Start.action), (3) consulted with a fair housing specialist through HUD (Department of Housing and Urban Development, specifically FHEO, the Office of Federal Housing and Equal Opportunity, enforces the Fair Housing Act, and their toll-free number for Utah is (800) 877-7353, details at http://portal.hud.gov/hudportal/HUD...), and (4) contested the eviction after consultation with a licensed attorney experienced at litigating fair housing act cases.

For the reasons Jamie noted, it is unlikely that the landlord would successfully complete an eviction under this scenario.

Signed,

Your friendly neighborhood licensed attorney that disputing landlords and tenants paid to protect their interests"


Conclusion

Federal law provides a religious freedom protection that BYU is unwilling to volunteer.

Tuesday, October 15, 2013

Evicted because you changed religions? Welcome to BYU, home of the International Center for Religious Freedom Pharisees


"You left Mormonism for Mohammed? Get out of your apartment!"
Can an LDS BYU student who is excommunicated or resigns his membership be evicted from BYU Contracted Housing?

Answer: Yes.

Today was a strange day. It's a bank holiday, and I work for a bank, so I had the day off: which was fortunate, because I needed a good chunk of time to help out my friend "Matthew." I wrote in a Facebook post:

"Know any current BYU Law students or Provo locals that would be interested in helping a victim of BYU's religious freedom failure? A friend of mine is a current LDS BYU student who's decided to change religions. His stake president yelled and berated him in an interview yesterday and threatened to excommunicate him in two weeks if he doesn't repent. 

Rather than pretend to believe, my friend has decided to resign his church records (though on my advice, he hasn't started the process yet). Either excommunication or resignation could result in my friend being evicted and losing his job in November (he lives in BYU contracted housing and works for BYU), not to mention being blocked from finishing out the semester.

I've done some initial research to help inform him about his options (especially as it relates to the eviction), but the poor guy is young, understandably scared, and getting contradicting information from people. It would be great to pair him with a caring, mature, local advocate that can help him get reliable answers. Please let me know."

Here's the first draft of the referenced eviction analysis, rough though it is, which shows how eviction can result from an LDS BYU student's exercise of religious freedom away from LDS orthodoxy.


Matthew is currently enrolled in normal daytime classes and resides at ____ Apartments, which is listed in the 2013 BYU Housing Guide (
http://housingguide.byu.edu/housingguide/pdfs/HousingGuide2013.pdf) as "BYU Contracted Housing." A typical example of a ____ contract is found here (http://och.byu.edu/PDF/2013-2014Student-LandlordRentalAgreement3.pdf).

The contract, in part, reads:

"I agree to comply with… the Residential Living Standards as listed below (collectively referred to as “Residential Living Standards”)... My violation of these standards shall be sufficient cause for eviction." (Contract)

Thus, Matthew's violation of the Residential Living Standards provides sufficient cause for his landlord to evict. One of the Residential Living Standards is:

"to conduct themselves in a manner consistent with the BYU Honor Code including abstaining from possessing, serving, or consuming alcoholic beverages, tobacco, tea, coffee, or harmful drugs both on and off the premises of Contracted Housing. Involvement with gambling, pornographic, erotic, indecent, or offensive material, obscene or indecent conduct or expressions, disorderly or disruptive conduct, or any other conduct or action inconsistent with the BYU Honor Code, in the sole discretion and judgment of the university, is not permitted on or off the premises of Contracted Housing. " (Contract, emphasis added)

In the case of excommunication or resigning one's LDS membership records, no judgment of the university is needed, since the Honor Code indicates the loss of Honor Code standing is automatic:

"Excommunication, disfellowshipment, or disaffiliation from The Church of Jesus Christ of Latter-day Saints automatically results in the withdrawal of the student's ecclesiastical endorsement and the loss of good Honor Code standing. Disaffiliation is defined for purposes of this policy as removal of an individual's name from the official records of the Church." (Honor Code)

Disaffiliation from the LDS Church, an action Matthew is considering, is an "action inconsistent with the BYU Honor Code" because it automatically results in the loss of good Honor Code standing, and because the Honor Code states:

"The term "good Honor Code standing" means that a student's conduct is consistent with the Honor Code."

Matthew's stake president's decision to excommunicate Matthew would also remove Matthew's good Honor Code standing. Thus, either excommunication or disaffiliation would qualify as a violation of the Residential Living Standards, and thus be sufficient grounds for eviction. In effect, a never-Mormon student can live in a BYU Contracted Housing without special risk of eviction, but a recently resigned or excommunicated Mormon student cannot.

Failing this theory, a landlord could also claim eviction on a separate ground: that the loss of good honor code standing constitutes a change in student status. Loss of good honor code standing results in discontinuation of enrollment:

"A student's endorsement may be withdrawn at any time if the ecclesiastical leader determines that the student is no longer eligible for the endorsement... Students without a current endorsement are not in good Honor Code standing and must discontinue enrollment." (Honor Code)

Discontinuing enrollment is inconsistent with the certification of student status in the Contract:

"I am a full or part-time student of BYU, enrolled in daytime or evening classes."

Further, the contract states:

"I agree to live in Contracted Housing under the principles of the Residential Living Standards, and the gender separation policy and remain eligible as a student as defined in this paragraph." (Contract)

Because the paragraph defines a student as being enrolled, discontinued enrollment places Matthew outside the eligible student status. Further, the contract states:

"I also understand if I am banned from BYU, I am not eligible to live in BYU Contracted Housing." (Contract)

Any change in student status is grounds for immediate termination of the contract:

"I recognize and understand that my Certification of Student Status is material to and relied upon by the landlord in entering into this rental agreement and any misrepresentation found
herein or change in student status is reason for immediate termination of this agreement and such other legal and equitable remedies as the landlord may pursue." (Contract, italics added)."

Thus, the Landlord could evict based on change of student status. The termination of the contract could be triggered as early as the date of discontinuation of enrollment. Because excommunication and disaffiliation automatically withdraw endorsement, the discontinuation date may be the same as the excommunication or disaffiliation date. 

Conclusion:

Matthew could be evicted solely due to his stake president's decision to excommunicate him, or solely due to Matthew's decision to formally resign from the LDS Church.

Monday, October 7, 2013

An Open Letter to Maurine Proctor and Those Pressing Against Ordination

By Rebecca Johnston

October 1977

An Open Letter to Maurine Proctor and Those Pressing Against Ordination

Dear Tyrone,

As the co-founder of Ordain Black Men, you are planning to march with a group of  black men to the general priesthood meeting of the LDS Church Saturday night to press for entrance. I don’t believe that you think entrance will actually be granted, because your requests for tickets have already been denied, so your motives must be for something else.

It seems clear that you are hoping for media attention for your cause, that you want to agitate or stir up emotions to support your goal: “Mormon black men seeking equality and ordination to the priesthood.” Perhaps you are hoping that creating a high profile will draw others into your ranks and that your numbers will swell.

You are by profession an international human rights attorney. For your career, you have learned an adversarial paradigm. Your world-view is based on clamoring, arguing and mounting evidence for the causes you believe. It is toe-to-toe, nose-to-nose, making points with contention and argument, reason and will. It’s not just the way of the attorney; it is the way of our times. This is a generation of people trained at divisiveness and attention-mongering for their viewpoint. Our public discourse these days is discordant. That might work well in furthering some causes in a court of law or even in the court of public opinion, but now we are talking about the Church.

If you are a hammer, then the whole world does indeed look like a nail.

In this case, however, if you choose to be a hammer, just what are you hammering against?

Believers understand that Jesus Christ is the head of this Church. He is the author of the doctrines and the organization, how and when things are taught and revealed. The Lord has given us prophets and apostles through which he communicates his will and reminds us, “whether by mine own voice or by the voice of my servants, it is the same” (Doctrine and Covenants 1:38). That is a bold doctrine, stating without hesitation that the Lord’s appointed prophets speak for him, which I believe.

This leads me to ask about your very public motives. If you have a question about black men’s place in the divine scheme of things, that is understandable. Of course, we seek answers to questions that impact our identity and understanding of ourselves.

Those who defend what you are doing like to point out how many revelations came because people brought questions to Joseph Smith and he, in turn, took those questions to the Lord. We think, for example, of Joseph Knight, David Whitmer, John Whitmer and Peter Whitmer (D&C 12, 14, 15 and 16) who each received revelation through the prophet because they asked him to query.

In each case, however, their query was about aligning themselves more perfectly with the Lord’s will for them. Their questions were essentially, what can I do to please the Lord? How can I serve Him better? What does he want of me? Their questions were asked in a spirit of humility, understanding who sets the terms of their relationship. Just as with our covenants, where we have made promises with the Lord in which he sets the terms, so it is with these questions asked and answered by Joseph Smith. The understanding is clear that those who had questions were stepping forward in a spirit of meekness striving to understand what the Lord wanted of them.

So I have a hypothetical for you. I wonder if you had the opportunity to have a private meeting with the prophet and were able to press for black men’s priesthood ordination and he answered that the Lord had said “no” would that be enough? If you asked him specifically if he had prayed about black men’s place in the kingdom and he said, “Yes, and what we have reflects the Lord’s answer,” would that be enough? With those answers, would you disband your group and go home?

Would you say to those whose profiles you are gathering, those who are planning to march with you to the Conference Center that the prophet has spoken? Go put your energies somewhere else?

I suspect not. This is the heart of what troubles me about your choice. You come from what I believe is a faulty assumption about the Kingdom of God on the earth because you are applying a secular paradigm. In the world, he who has the loudest voice and is clever about applying the most pressure often carries the day. Your agitation for ordination assumes that either the prophets will respond to pressure or that the Lord will. At the very least, it assumes that you have a better idea and are in a superior position to understand what will empower black men.

It assumes that the prophets are too spiritually dull or backward to see the important questions or to ask them. It assumes that through all the centuries of recorded spiritual history, the Lord forgot his black sons and their development.

There is a twist of intellectual dishonesty at the heart of this. You press for priesthood power, I assume, on the grounds that it is truly the power of God on the earth, yet at the same time you refuse to acknowledge that same power to act, discern, and reveal in the Lord’s anointed prophets. The implication of your agitation is that you don’t believe that the prophets act with real authority—the very priesthood power you are seeking for yourself.

That just makes no sense. Your motives become suspect. A large gap looms between a question that seeks for expanded understanding and confrontation that seeks for its own way.

I think it is the temptation of this fallen world to seek to instruct the Lord. Most of us have times, when assessing our own lives, we are certain we know more clearly than He does what He should do for us and what is necessary for our well-being. On the most personal level, I have found that when I take that approach to the Lord, I become divided from him. It is fundamentally a refusal to comprehend who He is and who I am, his glory which is unspeakable and my own complete dependence on Him even for the breath I draw.

How odd it is for the child to seek to instruct the Father. It is the same for any who would seek somehow to right the Church or steady the ark. There is a presumptiveness and arrogance about this, which is troubling. There is also, at its heart, an attack upon the idea that the Church is led by Jesus Christ and his servants.


Another hypothetical. What if the prophet invited you into his office, listened to your demands to receive the priesthood and then said, “Because you and your followers want this and have stirred up the world, it’s yours.” If that happened, what an insecure footing we would all suddenly be on. Instead of God being the sure foundation of this Church, the great immovable I AM, we might suspect that instead it is a Church dictated by white men—or black men.

Sunday, August 25, 2013

P90X and the Atonement

I saw a TV ad the other day similar to the below:

Like many TV ads, the marketing message tried to convince the viewer that s/he is inadequate as they are, and that the product being advertised will make them whole. "You are flabby and unpleasant to look at. For just $XX.99 a month and some sweat, you can be made muscly and confident like us." Of course, almost every sales pitch follows this basic pattern: you're lacking somehow, and you need our beer, our insurance, our sports car, etc. to bridge the gap.

Sounds to me like the Atonement.

A few weekends ago, I floated the American River in Sacramento. I served my mission in Sacramento, and used the opportunity to reflect on the core of the gospel message I shared: (1) because you sin, you're unclean; (2) only clean people can live with God in heaven; (3) only Jesus can reconcile the cosmic balance and make you clean again. The explicit metaphor President Packer and others use is of a spiritual debt that only Jesus can pay:


Spiritual debt. I reviewed my law school debt this morning, so debt is fresh on my mind. Not the most pleasant thing, admittedly: I would and do pay a high price to hack away at debt. Similarly, I invited folks on my mission to pay a high price: commit to attend church every week, get baptized, read your scriptures, pledge allegiance to the prophets, pay 10% of your income, etc. And what did I promise them in return? That the spiritual debt incurred due to their sins will be written off, paid by Jesus because you followed His exclusive formula.  Your inadequacies will be washed away if you buy our... beer/P90X/car/insurance/_______.

I don't buy it anymore. I don't believe I'm fundamentally flawed and indebted, and I don't want to teach that psychologically harmful and confidence-sapping self concept to others any more. It's dehumanizing! I  have felt personally and seen in many of my LDS peers (my brother and a dear mission companion of mine, for instance) the severe damage caused by the guilt and God-is-taking-notes consciousness the Atonement paradigm can induce. The basic premise is that God has a perfect knowledge of your every act, and any performance level less that perfection puts heaven out of your reach. Romans 3:

23 For all have sinned, and come short of the glory of God.

Unfortunately, we simply have no reliable way to know whether God has forgiven us. The closest proxy, guilt, is neither proportionate nor universal: it punishes the sensitive soul a thousand lashes for a nickel of offense, and afflicts a thieving and murdering sociopath no more than a passing mosquito.


Yet there is no better substitute for checking your cosmic balance, and as a practical matter many Mormons rely upon it. Thus, we live in constant fear of failing heaven, and an awakened self-consciousness of our inadequacy becomes a draining misery imposed on us by the recipe of the Atonement doctrine mixed with the reality of the fickle, capricious physical emotion we call guilt.

Sure, conceptually it's useful to think of a cosmic account that we debit through harming others and credit through benefiting them. This concept can aid in administering justice, for instance. However, the conceptual utility does not create the reality of a cosmic account subject to manipulation by deities, and no other evidence suggests the existence of such an account. Acknowledging that fact would cause a morally sensitive community to carefully safeguard freedom, vigorously detect and disincentivize oppression, and adopt the twin ethics of non-malevolence and benevolence (avoid harming and seek to benefit others) as moral guides. Such an acknowledgment might prioritize preventing autocracy and corruption, for instance. Instead, many invest their energy into exercising faith in Christ via religious activity, the mental effort involved in prayer, and proselyting. I can't help but think those energies would be more profitably invested in solving the governance and economic problems which are primary drivers of the net avoidable suffering extant in the world today.

In any case, the standard of perfection is irrationally high. Yes, I can reduce my moral errors: but if I don't eliminate them, I'm not in spiritual debt that only Jesus can pay. I'm a limited human being, for Buddha's sake. I don't have the intelligence, insight, energy, or wherewithal to analyze every moral decision (and all decisions are moral in my view, since all decisions have consequences). I lack the discipline, as does every other human on the planet, to execute the best moral alternative at each of those decision points.



I have a new ethic now. When I witness suffering caused by the immoral actions of others (e.g. suffering of Syrians affected by the current conflict), I am more interested in establishing institutions and practices that stop that suffering and prevent similar suffering in the future, and less interested in whether Jesus may or may not rectify the balance of justice in some distant future. I'm more interested in holding people accountable for their immoral behavior, and less interested in whether they have faith in Christ. I am more interested in making increasingly moral personal decisions now because it's the right thing to do, and less interested in reducing my spiritual debt or lessening Jesus's suffering in the garden or paying the price of God's forgiveness.

Lacking strong evidence for the existence (to say nothing of the details) of God's judgment, I am interested in the equation of human suffering and happiness that precedes death. There is no shortage of work to be done in that space, and it is there I choose to thrust in my sickle with all my might, and no longer spend my limited energy on the post-death equation my LDS peers claim to know so intimately. To the Atonement doctrine, I now say the same thing I say to the P90X and beer and sports car pitches on TV:


Wednesday, August 7, 2013

Religious Liberty For All!* (*Except at BYU)

Because I'm a BYU Law graduation, JRCLS (J. Reuben Clark Law School) emails appear in my inbox every month or so, much like the below:


I appreciate these emails, which help me stay up to date on happenings, and occasionally participate in JRCLS initiatives. It was the "Inspiration" portion of this particular "JRCLS Happenings -- Updates and Inspiration" that caught my attention today. It reads:

I couldn't help but be struck, once again, by the sanctimony of BYU Law-founded proclamations about the meaning and importance of religious liberty. The very institution that BYU Law is governed by, BYU, severely burdens the religious liberty of the vast majority of its own 30,000+ students. LDS BYU students, including LDS BYU Law students, are obligated to comply with the honor code. That honor code penalizes disaffiliation from LDS faith as an offense resulting in the inability to (1) enroll, (2) graduate, or (3) have their degrees post. As I have argued almost to excess, and as evidenced by my own brother's getting kicked out of BYU for converting to atheism, this practice unquestionably coerces pretense and inauthenticity among LDS BYU students whose religious convictions change while at school. They are not free "to witness their beliefs in public," for fear their Bishops will withdraw their ecclesiastical endorsements. The are coerced, on pain of their otherwise earned academic degrees, "to act contrary to [their] sense of religious duty." LDS BYU students who feel called to Islam, or to question, or to abandon theism altogether, do not enjoy "the right to change one's beliefs and religious affiliation." Instead, they pledge allegiance to the flag of Joseph with their lips, and populate LDS pews with their bottoms. I find it tragic that so many bow their heads, and say... something other than what they truly believe, because of the religious freedom that is denied them.

I feel that statements like this inspirational thought should be required to have an asterisk by them: "this applies to everyone but us."

My related posts:

The Emperor's Clothes: Religious Freedom and BYU Law's International Center for Law and Religion Studies

http://bradcarmack.blogspot.com/2012/12/the-emporers-clothes-religious-freedom.html

BYU's Policy of Kicking Out LDS Students That Convert: Addressed by Managing Director of BYU's International Center for Law and Religion Studies

http://bradcarmack.blogspot.com/2012/12/byus-policy-of-kicking-out-lds-students.html

Religious Freedom? Not at BYU

http://bradcarmack.blogspot.com/2011/01/religious-freedom-not-at-byu.html


My rebuttal to Robert George on a different subject:

And They Shall Be One Flesh: Why Robert George’s “What is Marriage?” May Falter

http://bradcarmack.blogspot.com/2011/05/and-they-shall-be-one-flesh-why-robert.html

"What is Marriage?" My Response to Robert George

http://bradcarmack.blogspot.com/2011/04/what-is-marriage-my-response-to-robbie.html

And They Shall Be One Flesh: Why Robert George's "What is Marriage?" Falters

http://bradcarmack.blogspot.com/2011/10/and-they-shall-be-one-flesh-why-robert.html



Tuesday, July 2, 2013

My book is on Amazon!

My book became available online the same day that SCOTUS issued the Prop 8 and DOMA decisions (27 July). Talk about your serendipity!

You can buy my book in hard copy:


or on Kindle.

Enjoy!

Sunday, June 2, 2013

Mormons: Why do we get same-sex marriage so wrong?

Today I posted in one of my Facebook groups:

Sunday School teacher just mentioned how romantic Ruth 1:16-17 is (whither thou goest I will go...). It's obvious she doesn't realize that the quote is spoken by one woman to another. Good thing my friend is here to keep me from pointing out the legitimacy of same-sex family relationships as evidenced in this story.

Some of the subsequent thread debated the nature of Naomi and Ruth's relationship. I share my response in this post.

I feel I should clarify. I can see that my inclusion of the word romantic may have led to the conclusion that I assert a romantic relationship between Ruth and Naomi. I do not see any evidence for that assertion.

Instead, my appeal would have been to the more central aspects of relationships that merit being categorized as familial. Those aspects include, most predominantly, three: (1) a long-term commitment to caretaking, (2) an economic partnership, and (3) cohabitation. Though not new to the stage, (4) companionate, (5) romantic, and (6) sexual love are fairly recent occupants of the lead role, and even in the present are, I argue, lest central to the concept of family than the first three. 

For instance, consider the case of a couple who wants to get married, and are committed to (1), (2), and (3). Further imagine that the woman in that relationship recently underwent a vaginectomy (or imagine the man lost his penis in an accident), and that the couple does not intend nor are they capable of genital sex. None would consider them barred from marriage candidacy, nor would their relationship fail to constitute a family.

Similarly, parent-child relationships elicit the three core aspects of a family relationship: (1) a commitment to caretaking (though admittedly in only one direction, though it could hardly be otherwise because a child is dependent by nature), (2) an economic partnership (primarily in just one direction, again unsurprising), and (3) cohabitation. In these three important senses, family relationships are genderless.

(4) Companionate, (5) romantic, and (6) sexual love are frequently associated with the subset of family relationships that are spousal, but are less central, and if you go back a century or two or three, generally, less central still. Thus, and this would have been my point: Naomi and Ruth's relationship strikes us powerfully as being familial, and same-sex relationships do as well, _for the same reasons_. (1-4 anyway, 5 and 6 being rather awkward for two presumptively straight women from different generations and living in their culture and century). 

I believe Mormon practice is incredibly good at getting family right, most things considered. Latter-day Saints understand and emphasize the importance of commitment, stability, and much to their credit, building the social capital needed to support the demands of keeping families healthy. Many church programs, teachings, and even its very structure (e.g. the local ward) are seemingly calculated towards founding, maintaining, and nurturing healthy families.

For those reasons, it is at once both painful and surprising that we get this one so wrong. There is so little that matters about what anatomical structures are found in your crotch, and so much that is harmed by presuming that your birth genitals do tell us something about your fitness for governance, or about what genitals you should be paired with in marriage, or about whether you're a candidate for ordination. 

As I've argued extensively (http://www.youtube.com/watch?v=ocUHzmK6IjUhttp://www.youtube.com/watch?v=XNAIB3cxiLA,http://www.youtube.com/watch?v=E1jDUcBKml0) and continue to maintain: the sooner we acknowledge our baseless presumptions, the sooner we regain hemorrhaging credibility as a people and as an institution, and the sooner we cease to wrongly stigmatize LGBT persons, same-sex relationships, and those who fail to express a penis at birth (i.e. women). And that, in my opinion, would be a wonderful thing.

Thursday, May 2, 2013

LDS Transsexual Policy: A Critique


My presentation at the 2013 Mormon Transhumanist Association Conference, held 5 April in the Salt Lake City Public Library.

An earlier draft version of the paper version is here.

Saturday, April 20, 2013

American Philosophical Association: my presentation in San Francisco on 30 March 2013


The Mormon Transhumanist Association newsfeed published:

Brad Carmack, director and secretary of the Mormon Transhumanist Association, represented the Mormon Transhumanist Association at the 87th Annual Meeting of the American Philosophical Society in San Francisco on 27-31 March 2013. Brad spoke on the subject of "Transfigurism: a Syncretization of Mormonism and Transhumanism". His thesis was that emerging technology will continue to affect the evolution of religion, and Mormon Transhumanism is an early example of some of the adaptations we might expect to observe more broadly going forward. In the video recording, Brad speaks from 1:38:56 to 1:50:48 and participates in the panel discussion beginning at 2:04:40.
----------------

I give my piece at 
http://www.youtube.com/watch?feature=player_detailpage&v=7Sr1kcogOoE#t=5936s
Fabuloso conference, I loved it! Dale Carrico was nice to me too. He's the kind of guy I'd naturally be friends with: far from the monster others' reports had me fearing. :-)

Saturday, March 9, 2013

Marriage Equality: the debate goes on

An acquaintance of mine emailed me recently as part of his fundraiser for his trip to Washington to support traditional marriage:



We've been having a pleasant dialogue since. I wonder how many similar discussions are going on in the world right now.

On Sun, Mar 3, 2013 at 12:05 AM, Brad Carmack <bradleycarmack@gmail.com> wrote:
Hi ____! 

Thanks for the invite below. Marching in Washington D.C. sounds like an exciting opportunity! I've advocated publicly for traditional marriage myself, via calling voters in Maine in 2009, and I also feel that the Prop 8 case is a very significant one.

I did want to ask though, if you wouldn't mind sharing, why you feel to support a traditional version of marriage rather than a more inclusive version, i.e. one that accommodates homosexual as well as heterosexual orientation. Since opposite-sex marriage is much more difficult an arrangement for gay people than same-sex marriage, some argue that a more inclusive marriage (that is to say, for gay people as well as straight people) helps to strengthen marriage by making marriage an expectation and opportunity for a larger portion of our community. Buttressed by traditional norms of caretaking and commitment, gay couples and their families arguably stand to gain from entering into marriages, just as their opposite-sex counterparts do.


Brad,

Thanks for responding! Great to hear from you. This is a very thoughtful question, and I appreciate you asking it because I think discussion on this issue is so important. 
There are a couple of reasons I feel strongly that marriage should continue to be defined as between a man and a woman. The most important to me is my religious beliefs, of course.
It makes sense to be candid about that, and I respect your acknowledgment of the fact. Many LDS members understandably take the same position for religious reasons. Some of them then go on to make secular arguments that they're not very serious about, as a pretext for why they truly take the position they do.  
But since my religious beliefs don't matter to most people, there are a few secular reasons I believe this is the best policy as well. Most of them center around children. Research shows, and I believe strongly, that children do best when they have both a mother and a father.
What research do you refer to, and what does it mean to you to claim that research evidences children do best when they have both a mother and a father? I have heard this argument before, but as of yet it doesn't add up to me. If a man were to claim his junior high son is the best free throw shooter, certainly he would mean the best free throw shooter on his team, or in his district perhaps. He would not mean that his son is the best free throw shooter in the world, or the best free throw shooter possible: as soon as someone in the comparison group came along and demonstrated a higher shooting percentage, the father would have to admit his son is no longer the best out of whatever particular group he was comparing to.
Similarly, most research that compares family structures did not include same-sex couple households in their sample: and they certainly did not include married same-sex couple households, since historically there have been so few to study due to the lack of access to marriage for same-sex couples. Instead, comparisons were often made between married opposite-sex couple households, cohabiting opposite-sex couple households, and single parent households. Thus, that research cannot be used to compare opposite-sex couple families to same-sex couple families.
Those few studies that do include same-sex couple families suggest there is little difference in parenting outcomes when compared to opposite-sex couple families, or a slight increase in parenting outcomes if the parenting couple is a pair of women rather than a man and a woman. 

Legalizing gay marriage would almost without question lead to legalization of adoptive rights for gay and lesbian couples. Some argue that this would be better than leaving children in foster care or orphanages. Some also argue that gay couples are also more loving and caring than many heterosexual couples. I can definitely see their point on both of these counts.
That's fair: I think you're right to acknowledge that there are gay couples that are more loving and caring to children in their care than some heterosexual couples.  
However, if our aim is to get children out of foster care or orphanages, or to increase kindness in the home, there are other ways to accomplish this goal than legalizing a type of union in society that can never hope to replicate the ideal situation of having both a mother and a father in the home.
Again, I would challenge your claim that a mother and a father is an ideal situation for children. If you presume the fact, then there is little use trying to prove it: if you claim that a particular family structure is ideal, how could any other family structure even have a chance of besting it? Also, if you wish to create better homes for children, why wouldn't you spend your limited resources advocating research-based drivers of parenting outcomes, such as (1) stable, (2) low-conflict, (3) dual parenting, (3) drug-free homes with (4) adequate, steady income? Those four factors account for much more of the variability in child welfare than the number of genders in the parenting couple. Importantly, marriage can contribute significantly to the first three factors: and given the immense number of children that are and will grow up in same-sex couple households regardless of the outcome of the marriage equality debate, it would be in their interest to have their same-sex couple parents married rather than not married.
Children do not have a voice in this debate, so we must speak up and explain what would be best for children and their development in society.
I would agree that children do not have a voice in this debate, but that fact does not mean that your position or its opposite is any more right than the other. 
Additionally, the legalization of gay marriage has shown in many cases to decrease religious freedom, as well as parental rights in education. Both of these concern me deeply as a religious person and as a parent.
Perhaps: but couldn't religious persons and parents who take the opposite position argue just as strongly in the opposite direction? A straight mother who believes in same-sex marriage claims the absence of gay marriage diminishes her parental right in education. A religious gay man says his religious freedom is decreased because gay marriage is not legal. What marginal argument from parental rights in education or religious freedom can be made against gay marriage, that can't be made against its absence?
These are just a few reasons. So feel free to ask additional questions if you'd like!

I contributed to his campaign today. I look forward to his responses.

Sunday, February 3, 2013

A Critique of the LDS Prop 8 Amicus Brief: "reliance interests" as the new rational basis for opposing same-sex marriage

"Von G Keetch: Counsel of Record." 

Von Keetch's name is the first to appear on the LDS-led coalition amicus filed in support of the proponents of Proposition 8 in the SCOTUS case that will likely be decided this summer.

If you want to sue the Corporation of the President of the Church of Jesus Christ of Latter-day Saints, Von Keetch is your man.

He's also exceptionally competent and the best stake president I ever had, leading my BYU stake for three of the years I lived at the Alta Apartments. Below, I offer my licensed attorney's first blush responses to the brief Von filed with the Supreme Court of the United States.

First, 
I am fascinated by the alliance evidenced by this particular document: one part Southern Baptist Convention, two parts Evangelicals, one part LDS, and a few others (including a union of Orthodox Jewish Congregations). I find it significant that this ecumenical coalition, despite their differences, united on submitting this religious freedom-asserting opposition to same-sex marriage.

Second,
I confess that I find many reasonable arguments in both the analysis and the summary.
  • No law is invalid when it “merely happens to coincide or harmonize with the tenets of some or all religions.” McGowan v. Maryland, 366 U.S. 420, 442 (1961).
  • And whatever the failings (past or present) of individuals within our faith communities, we are united in condemning hatred and mistreatment of homosexuals.
  • Holding Proposition 8 void because of its religious support would fly in the face of this Court’s teaching that the Constitution “does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique dis- abilities.” Mergens, 496 U.S. at 248 (quoting McDaniel v. Paty, 435 U.S. 618, 641 (1978)
  • That Proposition 8 was supported by some religious voters or is in harmony with some religious views is constitutionally irrelevant. 
In many places, the amicus appropriately cited precedent that accords a place for religious voices in public debates.

Third, I find that the brief does not fairly represent the diversity of views of same-sex marriage held by those that constitute the members of the participating entities:
  • Tens of millions of Americans are represented in the diverse group of faith communities that join in this brief. Despite their theological differences, these communities are united in declaring that the tradi- tional institution of marriage is essential to the welfare of the American family and society. This brief is submitted out of a shared conviction..."
  • "Yet for us and our members, traditional marriage is also indispensable to the material welfare of children, families, society, and our republican form of government."
Perhaps the authoritarian, hierarchical structure of the LDS institution permit the maintained illusion that the LDS membership is united in the view that traditional marriage is "essential to the welfare of the American family and society" and "indispensable to the material welfare of children, families, society, and our republican form of government." However, the brief was not filed on behalf of the Corporation for the President of the Church of Jesus Christ of Latter-day Saints, and thus it would be more accurate to say "some" or "most" when representing the memberships' views. I anticipate that the many LDS pro-marriage advocacy groups (including Mormons for Marriage and Mormons for Marriage Equality) might arch an eyebrow at being informed that they affirm traditional marriage at the expense of a definition that includes same-sex couples.

Fourth, the amicus hid a few surprises. As the rational bases for supporting Prop 8 seem to have failed both the district and appellate level in the Ninth Circuit, the brief asserts two bases that, I think, are relatively novel:

"Proposition 8 is valid for additional reasons the court of appeals did not consider. Judged by conventional rational-basis review, Proposition 8 reasonably serves the legitimate ends of restoring the definition of marriage congruent with the people’s moral sense and protecting the substantial expectation and reliance interests of opposite-sex couples in the traditional institution of marriage. Each of these rationales independently satisfies the Equal Protection Clause."

These two are new to me. The latter is fairly easily toppled: the same argument could be made along the race dimension by racially matched couples before anti-miscegenation laws were declared unconstitutional in Loving. Picture white Jane and white John arguing that you can't define marriage to include black Sarah and white Joseph because Jane and John grew up expecting all marriages to be between partners of the same race. The amicus addresses this inconsistency:


"By 1967, if not long before, it was pellucidly clear that anti-miscegenation laws were antithetical to both the Fourteenth Amendment’s core prohibition on racial discrimination and the Nation’s highest moral values. Indeed, by then no credible voice defended such laws, as they were obviously just naked attempts “to maintain White Supremacy.” Id. at 11. Here, in contrast, there is no clearly established constitutional right to same-sex marriage and there are credible voices in politics, academia, and religion as well as leading members of the bench and bar defending the constitutionality and wisdom of traditional marriage."


I would point out that both slavery and anti-miscegenation enjoyed support from "credible voices in politics, academia, and religion as well as leading members of the bench and bar defending the constitutionality and wisdom of traditional marriage." Much of the amicus relies on a very strong appeal to tradition, a well-known logical fallacy which nonetheless is the basis for our precedence-leaning federal common law system. The reasons appeals to tradition fail are obvious: oppression of women and disenfranchisement of blacks, for instance, both enjoyed long recognition and moral approval but are both harshly and broadly condemned today.

We have no qualms about defining "citizen" to include women and people of African descent, even though at the time some citizenship laws were passed or upheld by judges, those demographics were not contemplated as part of the definition. Similarly, the brief's recitation of cases affirming marriage (for some reason, the brief repeatedly cites 19th century cases and references John Locke, Adam Smith, and David Hume) are unpersuasive in the context of a debate over what marriage legally is. Further, the existence of a clearly established right to same-sex marriage under Romer and Bowers is argued, and not as lacking as claimed.



Thus, we are brought back to square one: are marriage definitions that preclude same-sex couples antithetical to federal prohibitions against sex discrimination and the Nation's highest moral values? Let's see if the second newbie holds an answer to that question, rather than the mere appeal to two fallacies (popularity and authority, in this case) offered by the first basis.

On its face, restoring the definition of marriage congruent with the people’s moral sense appears a candidate reason that might be considered rational.

"Proposition 8 Recovers a Definition of Marriage That Is Congruent with the Values of California Voters and Thus More Likely to Sustain the Institution of Marriage. Enacting Proposition 8 recovered the meaning of marriage that is most consistent with the value choices or moral sense of California voters."


Because the CA supreme court recognized same-sex marriages shortly before Prop 8's passage, the word recovered does some appropriate. Yes, the meaning of marriage was changed away from the man-woman only meaning that most held precedent to the court's decision. Yes, the recovery was most consistent with the moral sense of CA voters, as the majority voted in favor of the Proposition. I suppose the same basis could be posited in favor of an anti-miscegenation Proposition, had a CA court similarly began recognizing racially-mixed marriages and the majority of CA voters voted in favor of such a positions. However, aside from that rebuttal, the basis strikes me as rational.

Fifth, 
I notice that the brief somewhat ironically notes how little treatment the subject of homosexuality receives in church.

"Our faiths uphold the virtues of marriage and family life through teachings and rituals that seldom mention homosexuality."

From my perspective, this fact leads naturally to the conclusion that the LDS Church should naturally embrace same-sex marriage, as the anatomy of the two partners bears no necessary impact on the spiritual aspect of their union, commitment, and household. The brief's recitation of "We are among the “many religions [that] recognize marriage as having spiritual significance,” Turner v. Safley, 482 U.S. 78, 96 (1987), indeed as being truly “sacred,” Griswold v. Connecticut, 381 U.S. 479, 486 (1965)" is consistent with a same-sex marriage-embracing approach.

Sixth, 
I detect an unfair depiction that is weaved through several portions of the brief.

I don't think heterosexist marriage is more focused on societal and children's needs than a sex-neutral construction. Nor would man-woman-only marriage be less focused on the desires of the couple. As Judge Walker pointed out, marriage has long been recognized as the forming of a household by two adults: and a same-sex household is neither more nor less structured to the needs of children than is an opposite-sex one. The old "homosexual relationships are selfish and heterosexual ones are focused on children" argument never made sense to me. There are fertile and infertile opposite-sex marriages that are averse or abusive to children, and same-sex ones that are very welcoming of the same. Similarly, there is no structural aspect of the relationship that is more or less focused on the desires of the couple. The reasoning here is a head-scratcher for me.


Conclusion

I conclude that I'd like to read some more analyses. :-) What have others said about the brief?

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