Sunday, February 16, 2014

The Nonsensical Bogeyman Brief of the LDS Church

An amicus (friend of the court) brief (the “Brief) was filed last week with the 10th Circuit Court of Appeals in connection with Utah’s and Oklahoma’s marriage equality cases. It was proffered on behalf of the LDS Church, the United States Conference of Catholic Bishops, and several other conservative religious organizations (together referred to below as the “Churches”), and was prepared by the General Counsel of the Bishops’ Conference and by the “Church’s law firm,” Kirton McConkie of Salt Lake City.

A friend asked me after the Brief was filed whether I would be writing a piece about it. I was out of town this past week, but beyond that, I had skimmed the brief and frankly found it bizarre. I wasn’t really motivated to wade into those waters.

But I thought I’d read it again this past weekend to see if my initial impression had changed. Nope. I still find it bizarre for at least three reasons.

First, the brief seems to me to bear no rational relationship to the issues that will be before the 10th Circuit Court of Appeals. The main thrust of the “legal argument” – if such it may be called – is to defensively assert that the Churches are not full of bigots. The brief indignantly asserts that accusations of “antigay animus” that are seen to be hurled at the Churches are “false and offensive” (see sample quote below). 

While the Churches have the right to, as they see it, defend themselves, they are not parties to the litigation, and whether or not they feel slighted has no relevance to the legal issues involved. The nonsensical-ness of the argument could not be better stated than in their own words: 
“In this brief we demonstrate that Utah’s and Oklahoma’s marriage laws should not be overturned based on the spurious charge that religious organizations support such laws out of animus.” 
Huh? Ummm, it’s not all about you, Churches, despite how much you like to think it is; and as much as you think that your interests are the same as that of the state, you’re wrong. 

Second, the Brief is full of discussion of “animus.” (The word is mentioned 30 times in the brief.) Now, in terms of analyzing whether a law that discriminates (in the neutral sense) against a class of people is constitutional, courts must first determine what level of scrutiny is applicable to such analysis. In certain cases, courts apply a heightened scrutiny test, in which animus (dislike) plays a part; i.e., the courts inquire as to whether the legislative body (i.e., not the Churches) was motivated by animus toward the class of people in enacting a discriminatory law.

But the thing is, in Utah’s case (Kitchen v. Herbert), Judge Robert Shelby, although he queried whether heightened scrutiny should be used, ultimately relied on a lower test, i.e., the “rational basis” test – in which a finding of animus is not a factor. In fact, Judge Shelby specifically found that he could not inquire into the mind of Utah voters when they passed Amendment 3, thereby dismissing any allegations of animus. So, in legal terms, the discussion of animus by the Churches in the Brief is irrelevant (not to mention nonsensical).

Third, the Brief takes up the bizarre (from a legal standpoint) refrain that Judge Shelby called Utah voters irrational in adopting Amendment 3 (and that his Oklahoma counterpart similarly insulted the citizens of Oklahoma). This refrain is announced in the Brief’s Introduction:
“A common theme has arisen among advocates for redefining marriage to include same-sex couples: that those who oppose them must be irrational or even bigoted—that they are motivated by “antigay animus,” whether in the form of unthinking ignorance or actual hostility. Such aspersions, which take various forms, are often cast at people and institutions of faith. The accusation is false and offensive.”
That such an argument could be advanced by presumably competent constitutional lawyers is, well, difficult to believe.

The rational basis test is based on a well-developed body of constitutional law as formed by the Supreme Court and consists of inquiry by the court as to whether there is a rational basis between the stated legislative goals of a questionable statute and the provisions of such a statute (or constitutional amendment). This inquiry has nothing whatsoever to do with calling citizens irrational because they voted for Amendment 3, and it certainly has nothing whatsoever to do with calling members of the Churches irrational for holding the beliefs that they do with respect to marriage equality.

The Brief seems to me to be more of a public relations document than a legal document. It plays on the fears, defensiveness and moral outrage of the members of the Churches who are encouraged to believe that “renegade” judges are imposing the “homosexual agenda” on the general populace and are destroying “religious freedom.” In other words, it creates bogeymen – and nonsensical ones at that (although I guess a bogeyman could never be "sensical.")


  1. Joseph, thanks for taking the time to break their brief down. I have to agree; it's pretty ridiculous.

  2. After reading your article, it caught my curiosity enough that I bothered to read the churches' brief to the 10th Circuit. Well, at least I read the first part and then skimmed when it became clear that there wasn't anything significant, new, or interesting.

    Your description is spot on. It's like they didn't even bother to read Shelby's ruling. Their brief is more an attempt to respond to what they imagine their critics are maligning them about than the issue before the 10th Circuit. It does read more like a PR position paper, but even at that it misses the mark.

  3. Thanks, Utahhiker801 and Jeffret, for reading the post and taking the time to comment. Thanks, Jeffret. I agree totally with your comments.

  4. There is another LDS brief, issued earlier for the 9th Circuit on January 28th, which is almost identical in content to the brief that went to the 10th Circuit. If I understand correctly, there is a suspect class/heightened scrutiny issue with the 9th Circuit. It may be that animus was discussed for the benefit of the 9th Circuit and was left in the second brief to save having to completely rework the material.