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.

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.

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.

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.

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.


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


  1. Thanks Brad for this perspective. I am not a lawyer, but since you asked for more analyses, here are a few of my thoughts.

    First of all, I too noted the curious faith coalition, especially the inclusion of Truth in Action Ministries, who has for years steadfastly proclaimed the LDS church to be a cult. But hey, what's a little water under the bridge when the foundations of society are at stake?

    Second, the brief addresses the 9th Circuit opinion on the matter of animus by framing Prop 8 as merely an "honest debate among reasonable people of good will" and a "measured," "moderate response" to the California Supreme Court decision in re Marriage Cases. The problem here is that amending the constitution is anything but a "moderate response." It is a serious, even radical measure. Saying it was the "narrowest available means" to readopt Prop 22 is to grossly understate what the majority vote did. We're talking about a majority stripping a fundamental right from a minority. By popular vote! I seriously wonder if the court will buy the spin. Furthermore, measures like Prop 8 that employ a direct vote of the people are designed to by-pass the elected representatives and their measured, deliberate debate in favor of a campaign informed by 30-second television soundbites and dubious email chains. Prop 8 was anything but an "honest debate among reasonable people of good will." It was a campaign of commercials featuring scary music and frightened parents and children. It was a campaign where gay people were painted as dangerous to children, families and society.

    Third, the brief sets up a straw man by positing two "rival visions" of marriage. "Traditional" marriage is described as "an affirmative vision of family and ordered liberty" marked by children being born, nurtured and raised by parents within long-term relationships. Whereas same-sex marriage (the straw man) is a "competing vision" where marriage is primarily "a means of affirming intimate adult relationships" where the "role of children . . . is at most peripheral" where "what matters most is . . . obtaining official status" and "societal approval." One vision of marriage "is focused on children and society's needs; the other on the desires of the couple."

    The reason this is a straw man is that the number of same-sex couples raising children is not insignificant nor "peripheral." When same-sex couples marry they form families with striking similarity to those in which they were raised. Gay people generally are not incapable of procreating, nor parenting. They just need assistance with the procreating end of things, much as do some straight couples.

  2. Forth, I found it interesting that they point out that the many cases where courts have extolled the importance of marriage "were premised on the traditional understanding of marriage." Because at the heart of the matter is not so much the traditional understanding of marriage, but the traditional understanding of human-kind -- of human sexuality. Those justices of the past assumed, as did most of society, that all humans are innately heterosexual, unless "perverted" in the course of their lives. But today, society is overwhelmingly accepting the premise that gay people are innately and inherently unsuited towards heterosexual relationships, from birth. So this is not so much a debate over what the definition we should have for the word marriage or a particular vision of marriage, but what should be the place of gay people and their similarly situated families in society. All this talk about competing visions of marriage are distractions and straw men to divert us from the real issue.

    Finally, I thought that the section where the brief discussed "deeply held religious beliefs" as animus was telling. I'd have to revisit the 9th Circuit opinion, but I don't recall reading the "inference" suggested here. "Private beliefs" is a pretty broad term, but I understand that when "read in context" the proponents might see their own faith-based participation as being pretty significant.

  3. Great analysis, Steven! I appreciated each of your points.

  4. Enjoyed reading both! The expose' that needs to been written is all the subterfuge and deception that the LDS Church has engaged in to thwart same-sex marriage. From the beginning to present, they have been strange bedfellows (pun intended) climbing into bed with organizations that they have called the “great and abominable” to ones that have called them a cult as you point out and non-Christian by the rest. Their abhorrence is showing and obviously the LDS church must truly consider homosexuality next to being a “Son of Perdition” to make such alliances. Do they not see their own hypocrisy in asserting an argument which flies in the face of the early Prophets who practiced polygamy—Joseph Smith marrying two teenage sisters on the same day? I’m certain they have their hands behind their backs with their fingers crossed.

    The problem is the LDS Church never “repents” and admits its “sin.” Whether it be interracial marriage (they still secretly discourage the practice—read early statement when the priesthood was given to the descendants of Ham) encouraging gays and lesbians to enter into heterosexual marriage and “have faith;” equal rights for women, or the cause of mental illness and peoples lack of faith?

    There is a more subtle behavior I would like to point out—by not having the brief come out over the Corporation of the President, they can claim in the future when such actions are seen as bigotry and hatred that the brief was just the actions of a few zealot members. Much as they did with prop 8. I doubt that the legal firm wrote this for free—I would love to know who paid the attorneys.

    The Church has been failing its gay brothers and sisters and their families for years and at some point that failure will come back to haunt them. Being a follower of Christ has a very simple test—not what you do with the 99 but with the 1—a test they obviously fail as do the organizations of the coalition. Being one of the “1’s” I’ll be happy to testify against them on judgment day, if such a day ever comes—however the day is coming for same-sex couples who want to be treated to all of the benefits granted by law to those “legally and lawfully wedded” another change the LDS Church will have to make to the endowment ceremony when DOMA passes and Prop 8’s repeal is upheld if they are granted status before the Court in the first place. Oh well, the Church continues to be 20-30 years behind the social progress (they would call it corruption) of society. Democracy & the concept of the Republic would be by todays terms created by homosexuals or at the least, bisexuals. Perhaps in my lifetime homosexuals will finally enjoy the freedoms so envisioned when the worth and rights of the individual were respected.

    I would be happy if LDS Church would just practice its 11th article of Faith—and “allow all menthe same privilege, let them worship how, where, or what they may.”

    1. The Church would not have to allow gay marriage in the Temple. That's a myth.

  5. Hi Brad - I enjoyed your analysis. You and I had some dialogue a couple of years back on the Mormons for Marriage forum. I posted there as "FirstTime". Anyhow, good stuff from you, as always. When I read the amicus brief, I too was puzzled by the strange bedfellows who signed this brief. I continue to believe the Church has agreed to carry water on this issue for many organizations on the religious right, perhaps as a quid pro quo (implicit or explicit) to gain broader acceptance and fellowship into the community of more mainstream Christian faiths. I'm willing to bet that is a decision the Church will come to regret, if it hasn't to some degree already. Second, I also chuckled when I saw the numerous citations to Locke, Hume, and Smith. I guess that's what you cite to when the case authority doesn't favor your position. But for me the most untenable argument from the brief is the oft-repeated refrain that marriage should be only between a man and woman because traditions have always held it to be so. The obvious blind spot in this argument is that the Church, for many years, in fact defined marriage much differently while it practiced polygamy. Of course, my criticism is in this regard is familiar by now and has been made by many people since the same sex marriage debate began in the Church. However, in the context of this amicus brief, it felt very disingenuous for the amici to not include, at a minimum, a footnote to acknowledge the polygamous history of the Church, and then explain away the distinction. Because the amici's argument relies more on norms of morality than law, I think it is relevant to the argument and the acknowledgment should have been made.

  6. I predict all of the above is moot. The Court will toss the appeal on standing grounds. Read the law professor Amicus arguing as much, it's dead-on-point.


Search This Blog