Out-Patient Surgery: "I'm His Husband"

It was an intensely gratifying moment.

Mark had some outpatient surgery done yesterday. (He's fine.) Pretty standard, but he would be under general anesthetic for the procedure. His intake nurse at Intermountain Medical Center was going through a list of questions with him while I sat by his side. I had not introduced myself, and at one point she started referring to Mark's "family." She hadn't paid much attention to me until she asked Mark whether he had an advance directive. He said he did. She asked if he had brought a copy with him because there wasn't one in his chart. He hadn't.

That's when I piped up and said, "I have a copy in my car if you need it." (We had been advised that I should always have it with me, or at least easily accessible, just in case some hospital denied me rights.) The nurse looked at me somewhat quizzically. I took the leap and said, "I'm his husband." 

From that moment, everything changed. Her face brightened and she said, "Congratulations." (I wondered if she thought we had just been married after Monday's Supreme Court decision.) I smiled and replied, "Thank you. We were married in Hawaii, but as of Monday, our marriage is now legally recognized by the State of Utah." Once again, she said, "Congratulations!"

From that point forward, she included me in the conversation just as she would have done had I been Mark's wife. She asked my full name and wrote down my phone number. A warm glow spread inside of me, recognizing as I did that there would - thanks to Monday's Supreme Court decision - be no issues relating to me being with Mark, no question of who was next-of-kin. As of Monday, the State of Utah recognizes me as Mark's next-of-kin. We are now treated as a couple, as a family, not just two men who live together.

That feeling of gratification came again as the discharge nurse went through discharge instructions. During the whole interview, she never looked at me - until it came time to tell me some things that I, as spouse, needed to do and be aware of. Then, she handed the clipboard to me to sign as Mark's spouse, marking the first time that I have signed a document on behalf of my husband.

*The lead photo was taken from the patio outside the cafeteria of Intermountain Medical Center. 

What Today's Supreme Court Decision Means to Me

Today, the United States Supreme Court refused to hear Utah's appeal concerning same-sex marriage in this state. 

This is what this decision means to me. For starters, 

The State of Utah is now required to recognize this:

And the State of Utah is required to recognize families like this:

And the State of Utah is now required to accept love like this:

And the State of Utah is required to recognize that gay and lesbian people exist. There is no more state-sactioned societal closet.

Like hundreds of thousands of other gay men, I grew up in a time when a realization that one was gay - that one was queer, a homo, a faggot - was in most cases a death knell to the blossoming of one's individuality, one's personhood. This mental illness called homosexuality - for such it was considered until 1973 - was to be suppressed at all costs. 

One learned to hate oneself. Growing up in a religious environment, one also learned that, while others merited God's love, I - and others like me - did not. No matter how hard one tried to believe otherwise, the tides of self-hatred were too strong. Repress. Suppress. Carry on. 

Perhaps there would be some way to redeem myself. I thought I had found the path out of "homo hell" when I converted to the Mormon faith as a young man and embarked upon the "way of happiness." I married. I raised children. I loved to the best of my ability. But as the song, "Blessing" states, "every day a bit of me died." I could not redeem what could not be redeemed. Nor, as it turned out, could God ... because even He cannot redeem what needs no redemption.

Four years ago this month, I came out of the closet amidst the death throws of my marriage. Three years ago, I met a man with whom I fell deeply in love. Today, I share my life and my family with him. We had a commitment ceremony a little over a year ago and were married last spring in Hawaii. 

Now, as of today, there will no more need for "commitment ceremonies" in the State of Utah.

Now, as of today, I can hold my head even higher in the community in which we live, because the State of Utah is required to recognize that gay and lesbian people exist. We exist. We love. 

Finally, as of today, the State of Utah is required to legally recognize that who I - as a gay man - am worthy of protection by the government of the United States of America and the State of Utah.

All of this and more is what today's Supreme Court decision means to me. 

Of Secularism, Freedom of Religion and Freedom From It

“The beauty of our Constitution is that it accommodates our individual faith’s definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it.”

~ John G. Heyburn II, Kentucky Federal District Court Judge

Last Week's Broadside: Oaks, Mohler and the Deseret News

A broadside was launched this past Tuesday and Wednesday against “secularism” and the perceived banishment of the “free exercise of religion in the public square.” One salvo was fired in Rexburg by Elder Dallin Oaks at a BYU-I devotional. Another salvo was fired in Provo by Albert Mohler, the president of the Southern Baptist Theological Seminary, who was invited to address BYU students on the subject of secularism, religious liberty and “erotic liberty” (Mohler’s term; I plan to write about this address in a subsequent post). The third salvo was fired the following day – last Wednesday – when the Deseret News ran an editorial entitled “Banishing Free Exercise of Religion From the Public Square.”

It would strain credibility to claim that these three salvos were not coordinated. It also is very interesting that the talks by Oaks and Mohler were given on the day that the plaintiffs in the Kitchen case filed their answering brief and the DN piece was published the day after. But I’m sure that’s just a coincidence.

The targets of this broadside were “secular humanism” (Oaks), “secularism” (Mohler), and the “siren song of the secularists” (DN) – all of which, each claimed, are causing an erosion of the free exercise of religion in America. Each speaker or editorialist ultimately targeted homosexuality and the “redefinition of marriage” as prime examples of how religious liberty is under attack in this country.

The Deseret News Editorial

I wrote about Elder Oaks’ devotional address on Friday. Today, I’d like to turn briefly to the DN piece. Though not particularly coherent, the editorial does manage to hit what I suspect were the “talking points” agreed upon as part of the broadside.

First, the title of the piece, “Banishing free exercise of religion from the public square,” hits on a phrase also used by Oaks in his address: “We should also use our political influence to resist current moves to banish from legislative and judicial lawmaking all actions based on religious convictions and motivations.”

Secondly, the attack on secularism that was a feature of all three salvos.

Thirdly, and most prominently, comes the lament about the danger to religious liberty, although I think the DN’s salvo widely misses the mark here. Rather, it seems intent on hitting the talking point, without any evidence to back up its claims, which are summarized as follows:

“[T]hose motivated by religious convictions are being pressured to leave the public square — to put their religious convictions out of sight, sequestered from public debate about vital moral issues …In the cauldron of our nation’s fiercest moral debates, secularists insist that religious beliefs and viewpoints be made private.”

Fourthly, the DN editorial next comes to what I assume was the main talking point, without providing any rational connection between the foregoing “cauldron” statement and the immediately following paragraph:

“Take the debate about whether a state may continue to define marriage as between a man and woman. [Ok, I’m waiting to see how those motivated by religious convictions are being pressured to stay out of this debate. Wait for it … oh, maybe not.] Principles of federalism give states sovereign power in marriage laws [another talking point, no doubt, but has no logical connection whatsoever to the sentence that preceded it]. In cases of dispute, states debate and change laws as their people see fit. But our nation is ill-served when federal judges impose a definition of marriage [another talking point] — one that is not sanctioned by the Constitution [indeed, how so?] — on states like Utah, Oklahoma, Virginia and Texas.”

Freedom of Religion and Freedom From It

There are many things, well perhaps not that many, that could be said about the DN editorial. In response to it, I’d like to simply quote a few passages from the opinion (in Bourke v. Beshear) of Judge John G. Heyburn II, a federal district court judge in Kentucky who recently struck down the provisions of Kentucky’s constitutional amendment that bars recognition of same-sex marriages legally performed outside Kentucky’s borders. Note that Heyburn has been serving on the federal bench for over 20 years, having been nominated in 1992 by President George H. W. Bush on the recommendation of Senator Mitch McConnell, current minority leader in the Senate. 

“While Kentucky unquestionably has the power to regulate the recognition of civil marriages, those regulations must comply with the Constitution of the United States … Our Constitution was designed both to protect religious beliefs and prevent unlawful government discrimination based upon them.” 

******** 

“In a democracy, the majority routinely enacts its own moral judgments as laws. Kentucky’s citizens have done so here. Whether enacted by a legislature or by public referendum, those laws are subject to the guarantees of individual liberties contained within the United States Constitution.” 

******** 

“Usually, as here, the tradition behind the challenged law began at a time when most people did not fully appreciate, much less articulate, the individual rights in question. For years, many states had a tradition of segregation and even articulated reasons why it created a better, more stable society. Similarly, many states deprived women of their equal rights under the law, believing this to properly preserve our traditions. In time, even the most strident supporters of these views understood that they could not enforce their particular moral views to the detriment of another’s constitutional rights. Here as well, sometime in the not too distant future, the same understanding will come to pass.” 

******** 

“For many, a case involving these issues prompts some sincere questions and concerns. After all, recognizing same-sex marriage clashes with many accepted norms in Kentucky—both in society and faith. To the extent courts clash with what likely remains that majority opinion here, they risk some of the public’s acceptance. For these reasons, the Court feels a special obligation to answer some of those concerns. 

“Many Kentuckians believe in “traditional marriage.” Many believe what their ministers and scriptures tell them: that a marriage is a sacrament instituted between God and a man and a woman for society’s benefit. They may be confused—even angry—when a decision such as this one seems to call into question that view. These concerns are understandable and deserve an answer. 

“Our religious beliefs and societal traditions are vital to the fabric of society. Though each faith, minister, and individual can define marriage for themselves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it. Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons. 

“The beauty of our Constitution is that it accommodates our individual faith’s definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it.”

Surely, these words are, though offered humbly, as powerful as any written about the American Experiment and reflect the America I want to live in.

What Are BYU-I Students Supposed to Think, Elder Oaks?

This past Tuesday, while addressing a crowd of BYU-Idaho students at a devotional, Elder Dallin Oaks implicitly stated what the State of Utah has studiously avoided saying since the Kitchen decision last December: religious beliefs are really what is behind the State’s adoption and defense of Amendment 3, which bans same-sex marriage in Utah.

In a wide-ranging talk that focused on testifying of God, Oaks touched on a topic on which he has often spoken: the perceived threat to “religious freedom” in today’s society. Here are his remarks that are the subject of this post:

“We should also use our political influence to resist current moves to banish from legislative and judicial lawmaking all actions based on religious convictions and motivations. A dangerous recent example of this was the opinion of the single federal district judge who invalidated the California Proposition 8 constitutional amendment. The precedent of his decision on the inappropriateness of presumed religious or moral motivations as a basis for lawmaking was used by the lawyers who persuaded another federal district judge to invalidate the Utah constitutional provision and laws affirming the traditional limitation on marriages to one man and one woman. Then, when an eminent lawyer was hired to take the appeal, he was criticized by the Human Rights Campaign for having religious motivations for his decision to defend traditional marriage. Where will this illogical attack on religious motivations end?”

There was a point in time when I admired Elder Oaks, who in his earlier life was a law professor and a judge on the Utah Supreme Court. But in a number of addresses given in the past few years (about which I have written here and  here), I have found myself shaking my head, not only because I disagree with what he is saying about legal and political matters, but because I believe he is consciously misleading in what he says. 

In my view, the above-quoted passage from his devotional address this past Tuesday was another example of this. I’d like to break this passage down and add my own commentary.

"We should also use our political influence to resist current moves to banish from legislative and judicial lawmaking all actions based on religious convictions and motivations." 

Elder Oaks does not explain what he means by, or provide examples of (despite what he says in the next sentence) “moves” that are intent on “banishing” “actions.” What moves? Banishment? What actions? By using these ominous words, Oaks paints a dark and foreboding picture to the students listening to him, but he provides no context, no specifics. What does he expect the students to think?

Furthermore, he implies that there is something the students who are listening to him can do, some way that they can use their “political influence” to affect “judicial lawmaking.” Federal judges are appointed, not elected. Federal judges rely on established precedent and legal principles in reaching decisions and verdicts in every case that comes before them. Elder Oaks knows this. What does he expect the students to think?

"A dangerous recent example of this was the opinion of the single federal district judge who invalidated the California Proposition 8 constitutional amendment."

Dangerous. Why? A single judge? The Prop 8 case began as a trial. Trials are heard by one (a single) judge. Elder Oaks knows this. Judge Walker’s trial decision in the Prop 8 case was then appealed, but not by the State of California, which refused to defend Prop 8 at the appellate level. The 9th Circuit Court of Appeals allowed a group that had sponsored Prop 8 to appeal, but upheld the trial court’s decision. Elder Oaks knew all this, but he did not say so in his address. What does he expect the students to think?

"The precedent of his decision on the inappropriateness of presumed religious or moral motivations as a basis for lawmaking …"

Here, Elder Oaks is using his background as a lawyer and jurist, which appears to give additional gravitas to his remarks. What does he expect the students to think?

Elder Oaks implies that Judge Walker’s decision was based (solely) on the “inappropriateness of presumed religious or moral motivations” for banning same-sex marriage in the State of California. This is, in fact, untrue. There were a number of bases upon which Judge Walker followed established legal principles in deciding whether the discrimination against same-sex couples in California was justified by a rational connection to legitimate state interests. What does Elder Oaks expect the students to think?

That being said, one of the legal principles upon which Judge Walker relied is that developed in a string of Supreme Court decisions over the past 30 years (which in turn were based on earlier decisions). That principle is that, though the governing majority in a state has traditionally viewed a particular practice as immoral, this is not a sufficient reason for upholding a law prohibiting the practice, and without any other asserted state interest, “morality” is not a sufficient rationale to justify a law that discriminates among groups of persons. Elder Oaks knows all this. What does he expect the students to think?

“ … was used by the lawyers who persuaded another federal district judge to invalidate the Utah constitutional provision and laws affirming the traditional limitation on marriages to one man and one woman.”

I’ll just cut to the chase on this one. Elder Oaks seems to imply that Judge Shelby (the judge who ruled on the Kitchen case) is incapable of determining on his own what legal principles were involved in the case before him. Oaks also implies that there was no basis for Judge Shelby’s decision other than “the inappropriateness of presumed religious or moral motivations as a basis for lawmaking.” Elder Oaks knew this wasn’t the case. What does he expect the students to think?

“Then, when an eminent lawyer was hired to take the appeal, he was criticized by the Human Rights Campaign for having religious motivations for his decision to defend traditional marriage.”

Okay. Does Elder Oaks really believe the students before him know what the Human Rights Campaign is? I can almost see the look of disdain on Oaks’ face as he said these words. What does he expect the students to think?

The Human Rights Campaign, which is arguably the most important gay-rights advocacy organization in the country, took issue with the appointment of Gene Schaerr  because Schaerr’s duty was to represent the interests of ALL Utahns, not just Utahns who happen to be Mormons who do not support marriage equality. (I pointed out my own issues with this appointment here.) Elder Oaks’ comment substantiates concerns voiced by the HRC and others, in that he implicitly states that the interests of the LDS Church and that of the State of Utah are one and the same. What does he expect the students at BYU-I to think? 

"Where will this illogical attack on religious motivations end?"

Indeed? Illogical attack? What about it (assuming there is an “it”) is illogical? What does Oaks expect the students to think?

I’d like to turn his concluding question around: Where will religious-based attacks on constitutional principles end? 

A Callous Dumbing Down of Mixed-Orientation Marriage Issues

“I am so fed up, it's unbelievable. There is no simple solution. No single right answer. I have to answer to so many. A family who needs me, but I am dying emotionally, mentally, spiritually … Yet to leave my children, to cause pain to both them and wife - that is something that is not me, not something I would deliberately do, let alone choose to do. I would rather die. And so I am dying …”

~ Gay Mormon Man in a Mixed-Orientation Marriage

This is not a post about same-sex marriage. This is a post about Mormon mixed-orientation marriages. Specifically, this is a post about an op-ed piece that appeared in Sunday’s Deseret News that conflates mixed-orientation marriages with the issue of same-sex marriage by touting that mixed-orientation marriages are an alternative to “same-sex marriage.” 

In support of this proposition, the authors of the article – Michael and Jenet Jacob Anderson – do not point to extensive personal experience with or research of Mormon mixed-orientation marriages, nor to they point to statistical or academic studies. In point of fact, their piece is not only based on but liberally quotes from (without explicitly identifying the source, other than through an innocuous link) an amicus brief filed with the 10th Circuit Court of Appeal in the Kitchen case.

The fact that the Ericksons take such an extremely complicated, emotional issue, i.e., mixed-orientation marriage, and use it for political purposes is repulsive to me. I lived in a mixed-orientation marriage for over 20 years. I know many Mormon men who either are or have lived in a mixed-orientation marriage. I know a fair bit about mixed-orientation marriages, and in every case of which I am aware, there has been a tremendous amount of heartache; the circumstances of each marriage were unique to the couple involved; and the sexual orientation of one of the partners was only one factor that played into how the marriages evolved and, in some cases, ended.

The fact of the matter is that many, many gay Mormon men of my generation entered into marriages with women because that is what the Church taught they should do. Marriage to a woman would fix their problem. Living the Plan of Happiness would fix their problem. But it didn’t. What it did was, sooner or later, to one degree or another, create a tremendous amount of heartache.

The stories of these men and their spouses and children are largely unknown to the general LDS population (something I hope to help change). Stories such as those of Miguel, Allen, Kurt, Gary, Mark, Scott, Sarah, Sean, Kennedy, Steve, Shawn, Dan, Beck, Jeff, and many others. Because of this obscurity, the issues these families face and have faced are not appreciated by the larger Mormon community. 

This highlights yet another reason I took issue with the Erickson’s piece. They point to a few stories of couples on the Voices of Hope website who are making their mixed-orientation marriages work, imply that these are the people whose stories have been suppressed and then callously use them for their own rhetorical/political purposes by claiming that “their lives dispel the myth that same-sex marriage is the only path to being free, equal and happy.” What nonsense. I would have to think that the couples whose stories are featured in Erickson’s piece would themselves be mortified at the use to which their stories were put.

There is yet one more aspect of the Erickson piece that offends.

Many, many gay and lesbian Mormons, at some point in their journey, have been asked by (sometimes) well-meaning friends, family members and ward members, “Why can’t you be like _____?” The blank represents someone who has “successfully” addressed their same-sex attraction and is a faithful Mormon. These well-meaning (but often ignorant) people point to websites such as ldsvoicesofhope.org as proof of their point; but what they often don’t realize is how complex same-sex attraction is and how offensive their “advice” is.

The Ericksons, in their piece, took this practice to a whole new level when they in essence applied it not to just one individual but to the entire community of gay Mormon men and women, implying that – if they wanted to – they could be like the people in the Voices of Hope videos. What the Ericksons did was ignorant, but I don't think is was well-meaning. It was callous, self-serving and offensive.

There are other voices available on the web that tell different stories from those found on Voices of Hope. Kendall Wilcox has collected and posted a number of these stories on his Far Between movie website. Stories of gay and lesbian Mormons who have chosen to live their sexuality with loving partners can be found at Voices of Love. In addition, I plan to republish a number of the posts I wrote about mixed-orientation marriages when I first came out, starting with one that I published earlier this month entitled “A Situation That Defies Our Nature,” from which the opening quote (above) was taken. 

The issues pertaining to mixed-orientation marriages are extremely complicated. There needs to be more awareness and knowledge of these issues in the Mormon community. But they need to be talked about in a respectful and sensitive way, not used for callous political purposes.

In Plain View: Utah, the Zion Curtain and Gays

Yesterday, I heard on the radio that a member of the Utah Legislature, Kraig Powell, proposed an alternative to Utah's so-called "Zion Curtains" - partitions that are required in restaurants that serve alcohol so that the public's view of a bartender's mixing of alcoholic drinks is restricted. Powell proposed that restaurants be able to opt out of using the partition if they post a notice on all entrances and in their menus that reads: "Notice: This establishment dispenses and serves alcoholic products in public view."

There have been several attempts in the past few years in the Utah legislature to remove the "Zion Curtain" requirement; but this year, the LDS Church made the rare move of publicly opposing (as opposed to privately through discreet lobbyists) the barriers' removal, saying that separate alcohol preparation areas are part of an effective system for protecting against underage drinking, overconsumption and DUIs.

Right.

The real purpose, as everyone knows, is to try to hide the presence of alcohol in Utah society. The LDS Church takes the position that if alcohol is hidden, then the youth of Zion will be less likely to be enticed into drinking. But even the very conservative, very Republican, very Mormon Speaker of the House, Becky Lockhart, has called the partition "weird" and has said there's no evidence that it prevents children from taking up drinking.

When I heard the phrase "public view" on the radio, something clicked in my mind over which I've been ruminating for some time, i.e., the real reason why the State of Utah is so fiercely opposing marriage equality is that the State has constructed a "Zion Curtain" between its citizens who are LGBT and those who are not. 

So long as the State can keep gays and lesbians out of the public view - whether through opposing same-sex marriage or nondiscrimination legislation or in other ways - it can - as it believes (and as the LDS Church hierarchy believes) - keep the youth of Zion from being "corrupted" by homosexuality. Marriage equality, however, will remove that curtain, exposing the reality of gays and lesbians and the love that they share to not only the youth of Zion but to all Utahns. And this is what the State of Utah - as well as many other states around the country - as well as the Mormon Church, fears.

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.")

Whose Marriage Is It, Anyway?

"Marriage is the right of the individual. It is not the right of the state."

~ Theodore Olson

On February 4, 2014, the day after Utah filed its opening brief in the Kitchen v Herbert case with the 10th Circuit Court of Appeals, a hearing was held in a federal district courtroom in Virginia. Oral arguments were heard as to whether or not Virginia's ban on same-sex marriage is constitutional. Ted Olson - who played a pivotal role in arguing the Prop 8 case from federal district court all the way to the Supreme Court - argued on behalf of the plaintiffs.

As I read a transcript of Mr. Olson's argument, I was electrified by these passages that touched on something that had deeply troubled me about Utah's arguments in our own same-sex marriage legal battle:

"[Marriage] is the right of the individual. It is not the right of the state. That is the country that we live in. We have rights as individuals which are fundamental and cannot be taken away." [at p. 6, emphasis added] 

"The State wants to have marriage for people of opposite sexes so that they will channel their sexual activity into the institution of marriage. But there's two points with respect to that. It's not the state's right to impose a restriction on marriage because it wants to accomplish some social objective. The state could decide tomorrow we don't want procreation or we don't care about responsible procreation and change the rules. No because it's an individual right. It goes to the heart of who the individual is, their liberty, spirituality, and so forth" [at p. 9, emphasis added].

What had deeply troubled me about Utah's argument, as reflected in both its (multiple) applications for a stay of Judge Shelby's ruling as well as in its opening brief in support of its appeal of that ruling, is that it is ultimately based on the proposition that it - the State - has a right to promote a particular kind of marriage and family unit and that this right trumps an individual's right to marry.

At the time, I thought, "Do we as citizens exist for the benefit of the state, or does the state exist for the benefit of its citizens?" More to the point, "Does marriage exist for the state, or the state for marriage." Ted Olson's words articulated the response to these questions.

After reading the transcript of the oral arguments, I read the plaintiffs' briefs filed in the Virginia case, in which Olson and his team of lawyers wrote the following (in their second brief) with respect to these issues:

"If marriage exists solely to serve society’s interest, as Defendants argue, it makes no sense to speak of an individual’s right to marry" [at p. 1]. 

"There is only one fundamental “right to marry.” It is a liberty of association that fosters “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold v. Connecticut, 381 U.S. 479, 486 (1965). It is safeguarded by the Constitution not to promote “causes,” “political faiths,” or “social projects,” but instead “a way of life,” “a harmony in living,” and “a bilateral loyalty.” Id. It is a right to which everyone—including gay men and lesbians—is entitled" [at p. 8].

I then went back and re-visited Judge Shelby's ruling and read the following passages with additional insight:

"[T]he [US Supreme] Court’s decision in Griswold v. Connecticut, in which the Court struck down a Connecticut law that prohibited the use of contraceptives, established that the right to marry is intertwined with an individual’s right of privacy. The Court observed: 'We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.' 

"In Planned Parenthood of Southeastern Pennsylvania v. Casey, the [Supreme] Court emphasized the high degree of constitutional protection afforded to an individual’s personal choices about marriage and other intimate decisions: 'These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.'"

There are many legal challenges going on right now in various states across the country. Utah is not alone in basing its argument against marriage equality on not only "states rights" but, more importantly, on a state's right to do precisely what the Supreme Court in Griswold said it could not do - use marriage to promote "causes," "political faiths," and "social projects."

It is ironic that, in a state that is considered to be one of the most conservative in the nation, a state whose citizens typically pride themselves on their staunch defense of personal liberty, Utah's government is insisting that its citizens do not have the right to enjoy "the heart of liberty," a "liberty projected by the Fourteenth Amendment": the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life" without being subject to the "compulsion of the state." 

To Make Her Happy: Of Sealing Rooms, Golden Cages and Closets

"Your job is to make your wife happy."

~ Temple Sealer

We were in the sealing room in the Jordan River Temple.* The sealer was imparting some words of wisdom to my former wife and me. He first told the story of Adam and Eve, about how Eve partook of the fruit of the knowledge of good and evil, but Adam did not partake. When Eve “confessed” to Adam, he steadfastly refused to partake, citing “Father’s” commandment not to do so. Eve then points out to Adam that if he refuses, she will be cast out and he will be left a “lone man” in the garden of Eden.   

The sealer arrived at his point. Addressing me, he said, “And Adam said, ‘I see that this must be so.’” Gazing intently at me, the sealer continued, “There will be times when you will turn to your wife after she has given you counsel regarding a difficult decision and you will say, ‘I see that this must be so.’” 

Then came the clencher. “Your job,” he said, “is to make your wife happy.”

As far as I recall, the sealer said absolutely nothing to my wife about what she was supposed to do for me. There was, of course, no exchange of vows. No mutual promises to love, honor and cherish, for richer for poorer, in sickness and in health, in good times and in bad, in the closet or out of the closet. Merely, I was supposed to listen to her counsel and make her happy. That was my role.

The problem is, I took this charge very seriously. If this mandate had been given to another man, say a heterosexual man who was very confident in his sense of self, he might have rolled with it. To me, however, plagued as I was by self-doubt and an inner sense of self-loathing because of my (by then) 15-year-long experience of attraction to people of my own gender, it was a command (not the only one) to offer up all of me upon the altar of marriage. My job was to make her – not me – happy. Only by completely surrendering myself to this marriage could I have any hope of redemption.

Parenthetically, even if I had been heterosexual, however, this assertion that I was responsible for my wife's happiness, played into and turbo-charged very unhealthy thought and behavior patterns that I had brought into my marriage from my own childhood and dysfunctional family of origin, wherein I had experienced role-reversal with both of my parents and had been made responsible for their happiness. It wasn't until years and years into the marriage, however, that I gradually began to understand what was going on.

Meanwhile, over the years, I grew increasingly disturbed by how the Church as an institution and as a culture treated women (and, consequently, men) and how it encouraged men to treat their wives. Put up on a pedestal, in a gilded cage, women were and are treated by the Mormon Patriarchy as "special." Men are the virile protectors and women are the subservient, weaker dependents.

I have frankly been disgusted over the years as I have heard various local church leaders refer to their wives as their “sweethearts,” and publicly fawn over them – as long, that is, as they stayed in their gilded cage. Mormonism makes such a fuss over women and mothers; Mother’s Day was almost unbearable for me, there was always such a gush of saccharine goo.  

Father’s Day, on the other hand, was typically treated almost as an embarrassment by the men who were running the show. Why is that? The most important calling that a man can have on this earth is supposedly that of father … yet fatherhood is never discussed in human terms in priesthood meetings, sacrament meetings, or elsewhere. Rather, the myth of the heroic Mormon father holds sway, and as long as we read our scriptures, say our prayers, don’t look at pornography and pay our tithing, all will be well.

And heaven help the homosexuals, because they cut to the very heart of the Mormon myth of the heroic father. The Mormon patriarchal hierarchy despises homosexuality because homosexuality upsets the patriarchy’s view of itself and the natural order of things. It opens up the male persona to other interpretations that don’t fit neatly within the Mormon box.

Roles (using the term in its psycho-analytical sense), whether in the Church or in families, are not healthy. We are each here to fulfill the measure of our own creation, not fulfill a role that someone else assigns to us. And we are, ultimately, each responsible for our own happiness - not someone else's.

*This post was originally published on one of my former blogs (now closed) in August 2012. My mind turned toward it as I was reading Utah's arguments against marriage equality and the roles that the State (as an agent of LDS teachings on the family) seeks to assign to men and women.

Birth Rates Hanging By a Thread

One of Utah’s primary arguments against marriage equality – believe it or not – is that same-sex marriage would imperil Utah’s birth rate and send it crashing from its current pinnacle to depths that imperial the continuation of the species in the Beehive State. “Utah,” the State argues, “has a strong and compelling interest not only in the quality of parenting its children receive, but also in the number of children who will be conceived in the future and raised in high-quality home arrangements.”

A Causal Non-Causal Link

As their opening salvo in this argument, the State’s attorneys attempt to establish a causal connection (even though they refer to it a correlation) between marriage equality and lower birth rates in states and countries that have legalized same-sex marriage:

“It is striking that fertility and birthrates tend to be markedly lower in nations and states that have embraced same-sex marriage. For example, the birthrate in states (and Washington, D.C.) that have adopted a genderless marriage definition is significantly lower than the national average. In fact, the six lowest birthrate states [comprising the New England states] have all adopted that redefinition  … The same is true overseas. As of 2011, ten countries permitted same-sex marriage. Six of these ten fall well into the bottom quarter in both birth rates and fertility among 223 countries and territories, and all ten fall below the average worldwide fertility rate.”

After citing these statistics, however, the State admits that “ …  [w]hile these statistics obviously do not prove a causal link between same-sex marriage and declining birthrates, they do create cause for concern.”

Utah’s Orwellian Interest in Procreation

After strongly implying that other states are not pulling their birth rate weight – especially those that have already legalized same-sex marriage – the State goes on to point out how successful it has been in procreating. “So far,” the attorneys for Utah argue, “Utah has been more successful than these states and countries in encouraging procreation.”

Utah’s lawyers then go on to explain to the 10th Circuit Court of Appeals why Utah has been so successful:

“By providing special privileges and status to couples that are uniquely capable of producing offspring without biological assistance from third parties, the State sends a clear if subtle message to all of its citizens that natural reproduction is healthy, desirable and highly valued. That message fosters more reproduction …  Utah’s marriage laws and traditions subtly convey to all citizens that it is good to make the sacrifices necessary to have children—even though doing so may be inconvenient or even burdensome to adult parents … [T]he very institution of man-woman marriage stands as a State endorsement not only of the value of raising children in intact marriages, but also of the value of procreation.”

Hmmmm. Is it just me, or does this sound more like a General Conference talk by a leader in the LDS Church than a legal argument advanced by a sovereign state? Since when does a governmental entity tell its citizens that they should have children, even if it is “inconvenient” or requires “sacrifices”? (See also the italicized passage in the quote below.) That this Orwellian argument is being advanced by the state of Utah – which prides itself on its “conservatism” – is an irony of almost limitless richness.

Hanging By a Thread

Utah then goes on to paint a picture of what would happen in the Beehive State if marriage equality is legalized:

 “By contrast, redefining marriage in genderless terms would tend to reduce fertility rates, for at least three reasons. First … redefining marriage in genderless terms breaks the critical conceptual link between marriage and procreation … Second, … a genderless redefinition would send a powerful message that it is entirely appropriate—even expected—for adults to forego or severely limit the number of their children based on concerns for their own convenience. That a new child might “cramp the style” of an adult would come to be seen as sufficient reason not to have the child at all. That too would tend to reduce fertility rates. Third, to the extent a genderless marriage definition encourages the further abandonment—or privatization—of marriage, it would almost certainly reduce birthrates"[emphasis added]. 

Again, however, I ask: is this an argument of a sovereign state or of a leader in the LDS Church? And, by the way, should I also point out that the State offers absolutely ZERO citations to ANYTHING – no social studies, no legal precedent, nothing – in support of this argument. But I guess that could be easily deduced by the incredible inanity of it.

As in other sections of Utah’s opening argument before the 10th Circuit, there are strong Mormon overtones to this procreation drivel (by which I mean the legal argument, not Mormon doctrine). There is almost a millenialist, impending judgment overtone to it, bringing to mind the legendary prophecy ascribed to Joseph Smith that the US Constitution would one day “hang by a thread” and that it would be members of the LDS Church who would save it. In this section of its argument, the State of Utah sends out a similar warning that same-sex marriage will cause birth rates to plunge to apocalyptic levels. Do the State’s lawyers really expect anyone to treat this argument seriously? (Facepalm)

Alma vs. Oaks: Religion in Civil Society

One of the primary arguments of the State of Utah in its recently filed brief with the 10th Circuit Court of Appeals focuses on "preserving Utah’s marriage definition [because it] furthers the State’s vital interests in accommodating religious freedom and reducing the potential for civic strife." 

"Protecting" religious "freedom" has become a common theme among certain conservative religious leaders around the country, including members of the Roman Catholic hierarchy and members of the LDS Church's hierarchy. Elder Dallin Oaks of the Church's quorum of apostles has been particularly vocal on this issue.

In partial response to Utah's brief, I am republishing the following post which was originally published on my Invictus Pilgrim blog in February 2011. I think it is as timely now as it was then.

*********

At another time in my life, I, like most members of the Church, would read what Elder Oaks has said about religious freedom in modern American life and, given that he had an impressive legal career prior to becoming an apostle, assume that he was making valid points that were not only inspired, but based solidly in American constitutional law and tradition. That was at another time in my life. 

This past Friday, Dallin Oaks gave a speech at the law school of Chapman University in California, entitled “Preserving Religious Freedom," the complete transcript of which (along with a video) is available here.  Though I have a legal background, I am not learned in constitutional law and do not propose to comment on Elder Oaks speech from that perspective. But I do not think one needs to be a constitutional scholar to take issue with the basic points that Oaks makes in his address. (It should be kept in mind that Oaks was not addressing an LDS audience in General Conference, but a non-Mormon audience in a secular environment.)

Since he conveniently summarized them at the conclusion of his remarks, I will use these (set out below in bold) as an outline for my comments, heading various sections with his summary points.

One could respond to Elder Oaks’ speech from a number of different perspectives and in a number of different ways. I have chosen to analyze Oak’s comments within the context of a comparison of Elder Oaks’ views on the role of religion in civil society to those of Alma the Younger. Those familiar with the Book of Mormon will remember that, in the first chapters of the Book of Alma, Alma was serving as both high priest of the church as well as chief judge, thus combining ecclesiastical and political power in one person. Because of growing iniquity in the church, however, he eventually decided that he needed to do something. 

Interestingly, however, Alma did not choose to use his political power to enforce standards of morality among his people. Rather, he resigned as chief judge and devoted himself to preaching to the members of the church, “seeing no way that he might reclaim them save it were in bearing down in pure testimony against them … confin[ing] himself wholly to the high priesthood of the holy order of God, to the testimony of the word, according to the spirit of revelation and prophecy” (Alma 4:19-20).

After discussing Elder Oaks’ comments, I would like to return to Alma’s actions in order to compare the way in which Alma chose to address societal “immorality” and lack of belief, versus the positions that Elder Oaks advocates.

Oaks Point #1: “Religious teachings and religious organizations are valuable and important to our free society and therefore deserving of their special legal protection.”

As support for this proposition, Elder Oaks basically makes the argument that religious organizations do a lot of good work in society and teach people to be moral, which in turn supports a stable society and, hence, government. Because of these services, Oaks argues, religious organizations and teachings deserve special legal (as opposed to simply cultural) protection. Among many other things, implicit in Oaks’ statements is that religious speech (i.e., teachings) deserves special legal protection, above any other kind of speech – an important foundation for the rest of his arguments. 

Oaks treats his proposition as self-evident, needing no basis in law or tradition – which he does not in fact cite. Rather, after treating his point as self-evident, he goes on to decry the deterioration of faith in society and implies that this situation provides even more justification for his position.

But why, in fact, should religious organizations, let alone religious teachings be granted special legal protection in 21st- century American society? This is the question that Oaks does not answer. Given that this assertion is the foundation for the rest of his arguments, it deserves careful and critical scrutiny. I will leave this to others. For the purpose of this post, I will simply contrast this approach to the legal status afforded religion with that described in the first part of the Book of Alma as pertaining to Nephite society. Alma did not seek legal buttressing of his preaching; rather he approached the issue from the opposite perspective:  he viewed his preaching as buttressing the legal framework of society.

Oaks Point #2: “Religious freedom undergirds the origin and existence of this country and is the dominating civil liberty.”

Again this assertion, at least the first half of it, sounds totally reasonable on first hearing. But I find the combination of the historical role of religious freedom with the assertion that it is the “dominating civil liberty” disingenuous and, some might argue, insidious. The acknowledgement of the first half of the assertion is apparently intended to lend credence to rather striking assertion that religious freedom is the “dominant liberty” in the panoply of individual rights guaranteed by the Bill of Rights.

Oaks offers no scholarly support for this assertion. He cites one document, a report prepared in 1999, but does not identify the authors. Once again, he makes an extremely broad assertion with no authority, treating his conclusion as self-evident. He concludes this section of his speech with a statement which strikes me as breathtaking in its scope: “I maintain, that in our nation's founding and in our constitutional order religious freedom and its associated First Amendment freedoms of speech and press are the motivating and dominating civil liberties and civil rights.” 

Once again, I leave it to others to discourse in a more scholarly fashion on the many implications of this statement. I will simply point out that I find this assertion extraordinary and dangerous, if for no other reason that it purports to again hand organized religion a “trump card” that ensures that freedom of religion trumps every other right guaranteed to American citizens under the Constitution.

Oaks Point #3: “The guarantee of free exercise of religion is weakening in its effects and in public esteem.”

The bulk of Oaks’ speech is directed to a discussion of this point. Having established, in his view, that religious teachings and organizations deserve special legal protection and that freedom of religion (including the all-important right to exercise one’s religion) is the “dominant” civil right, Oaks launches into a lengthy discussion of how the right to exercise (whatever that term means) one’s religion is under assault in modern America. I will focus on only a few of Oaks’ comments, particularly those having to do with gay rights. 

Before launching an attack on gay rights advocates, Oaks plainly highlights one of the main themes of his address: “Religion must preserve its preferred status in our pluralistic society in order to make its unique contribution—its recognition and commitment to values that transcend the secular world."  He then refers to comments that Cardinal Francis George made when speaking at BYU in 2010, who spoke of “threats to religious freedom in America that are new to our history and to our tradition,” one of these being “the development of gay rights and the call for same-sex 'marriage.'"

Oaks describes a number of examples of how he feels that religion has been denied its place in the “public square” by gay rights advocates. In the process, he manages to totally distort the entire debate between those who seek equal civil rights for gays and those, such as the LDS Church, who seek to deny, on religious grounds, these civil rights. In addition to his previous assertions that religious organizations and beliefs should enjoy special legal protection and that freedom of religion is the “dominant” civil right, he now claims that the act of those who assert civil rights for gays is an attack on the freedom of religion (and must therefore be quashed).

“Along with many others,” said Oaks, “I see a serious threat to the freedom of religion in the current assertion of a “civil right" of homosexuals to be free from religious preaching against their relationships. Religious leaders of various denominations affirm and preach that sexual relations should only occur between a man and a woman joined together in marriage. One would think that the preaching of such a doctrinal belief would be protected by the constitutional guarantee of the free exercise of religion, to say nothing of the guarantee of free speech. However, we are beginning to see worldwide indications that this may not be so.  Religious preaching of the wrongfulness of homosexual relations is beginning to be threatened with criminal prosecution or actually prosecuted or made the subject of civil penalties.”

Almost all of the examples cited by Oaks of such “prosecution” involve persons who are trying to assert personal religious beliefs in governmental or quasi-governmental environments. In other words, these individuals have been called out by gay rights advocates for trying to use their public positions to espouse their own individual beliefs. So, not only does Oaks apparently believe that freedom of religion can be used as a “sword” (enjoying special legal protection and status) in public debate, it can also be used as a “shield” to protect it from responsibility for its actions and comments in the “public square” (a classic case in point being the Church’s involvement with Proposition 8). 

Oaks Point #4: “This weakening [of religious freedom] is attributable to the ascendancy of moral relativism.”

This point is pretty much self-explanatory: Oakes decries the “rise” of moral relativism and the corresponding decrease of respect for organized religion. He then concludes with this statement:

“The preservation of religious freedom in our nation depends on the value we attach to the teachings of right and wrong in our churches, synagogues and mosques. It is faith in God—however defined—that translates these religious teachings into the moral behavior that benefits the nation. As fewer and fewer citizens believe in God and in the existence of the moral absolutes taught by religious leaders, the importance of religious freedom to the totality of our citizens is diminished. We stand to lose that freedom if many believe that religious leaders, who preach right and wrong, make no unique contribution to society and therefore should have no special legal protection.”

Correct me if I’m wrong, but it sure seems to me that Elder Oaks is essentially saying that the fact that more and more people in society have less and less respect for organized religion militates even more strongly for a special legal protection being given to the “unique contribution” that organized religion makes to society. Nothing seems plainer to me, however, that the intent of the Founders was to ensure that organized religion did not enjoy a privileged place in American society. Rather, religion was to do its thing, and government was to do its thing. Period.

Put another way, Elder Oaks’ assertions appear to put new garb on the age-old practice of trying to legislate morality: rather than simply having the government do organized religion’s bidding, organized religion seeks special protection and status within society to advance its agenda.

Oaks concludes by calling for a “broad coalition” to defend religious liberty, as he sees it: “All that is necessary for unity and a broad coalition along the lines I am suggesting is a common belief that there is a right and wrong in human behavior that has been established by a Supreme Being.” The question, of course, is who decides what that right and wrong is, and how much privilege, deference and protection are religious organizations and beliefs to be accorded in society in advancing “religious” views of right and wrong.

Conclusion

Many, if not most, members of the LDS Church will cheer Elder Oaks’ comments without giving them any serious thought. The bells and whistles, the catch-phrases, the code words are all there, triggering emotional responses that evoke that often-deadly mix within many members of patriotism, faith and blind obedience. 

But I maintain that if thinking members of the Church would step back and consider the lesson of Alma from the Book of Mormon, as well as the ramifications of the central doctrine of the plan of salvation (free agency), they could not help but be deeply troubled by Elder Oaks’ comments. If organized religious organizations would do as Alma did, i.e., confining themselves “wholly to … the testimony of the word, according to the spirit of revelation and prophecy” then they would fulfill the task which Elder Oaks ascribes to them – without needing special status, privilege or protection in civil society.

Utah's Could Likely Might Arguments

As I was reading through the State of Utah’s recently-filed brief to the 10th Circuit Court of Appeals, I began to notice something: the number of times that words like “could,” “likely,” “might” and “could” were used in advancing Utah’s arguments.

I’m sure that the plaintiffs'  attorneys will address this in their brief, but I thought it might be informative and instructive to highlight some of the passages of the brief that use one or more of these words (and highlight how outrageously silly some of Utah's arguments are):

“[I]n a variety of ways, redefining marriage in genderless terms would LIKELY reduce, over time, the proportion of children being raised in one of [Utah’s preferred] arrangements [for raising children] —thus placing at serious risk the welfare of children who will be raised in other arrangements as a result.”

“The State has a compelling interest in ensuring adequate reproduction and, conversely, in avoiding a definitional change that (over time) COULD help send its birthrate below replacement levels.”

“Utah’s self- sacrificing, child-centric view of marriage and parenting is important to a range of parental decisions beyond ensuring that the child is raised by both her father and her mother. For example, it MIGHT encourage parents to forego abusing alcohol or drugs; avoid destabilizing extramarital affairs; avoid excessively demanding work schedules; or limit time-consuming hobbies or other interests that take them away from their children.”

“[C]ompared to children born in all the States, a child born in Utah has the best chance of knowing and being reared by his or her biological married mother and father. That fact also LIKELY explains why Utah has a very small percentage of its children growing up in poverty—15%, the fourth lowest in the Nation, compared to a national average of 23%. It also LIKELY explains why Utah children, even in the lowest-income households, have one of the highest rates of upward mobility.”

“[T]he loss of the State’s clear message in favor of biological mother-father parenting within marriage would LIKELY result in a higher percentage of couples conceiving children without the stability that marriage would otherwise bring. “

“[A group of scholars cited by Utah in its argument] show that ‘[s]ame-sex marriage . . . would undermine the idea that children need both a mother and a father, further weakening the societal norm that men should take responsibility for the children they beget.’ Over time, this too would LIKELY lead to more children being raised—and for longer periods—without both of their biological parents.” 

“[A] genderless definition of marriage would LIKELY increase the number of children being raised by same-sex parents. That could happen because the couple decides to raise together an existing child of one of the partners. Or it could result from the conception of a new child through surrogacy or sperm-donation. Either way, such children will not benefit from the State’s preferred mother-father parenting model.” 

“[I]f the traditional male-female aspect of marriage were thrown out as irrational, it would LIKELY become more difficult to resist other innovations that would lead to additional children being raised without a father or mother [such as group marriage].” 

“[A] court-ordered redefinition of marriage COULD WELL lead to its wholesale ‘privatization’ [Utah’s word for civil marriage, which is the practice in most European countries and other countries around the world]—for example, by enactment of a civil union regime for all couples, with religious and other organizations being free to offer the title of “marriage” as they see fit … In Utah and elsewhere, judicial invalidation of the traditional definition of marriage COULD WELL create a broad political consensus for such a radical step. Such a development—and the consequent reduction in governmental encouragement for marriage—COULD WELL cause a substantial decline in the public’s interest in marriage, similar to the decline already seen in many parts of Europe.”  

“And if marriage is privatized, or if it comes to be understood as primarily for the benefit of adults rather than children, then those who wish to have children (or to engage in conduct that could lead to children [umm, do they mean having sex?]) MAY choose not to marry if they believe other social arrangements would better serve their individual needs.” 

“Governments WOULD LIKELY be pressured—and PERHAPS agree—to revoke the tax-exempt status of churches or other non-profit religious organizations that refuse on religious grounds to recognize same-sex marriages or to provide benefits to same-sex couples on the same terms as husband-wife couples. 

“Governments WOULD LIKELY be pressured—and PERHAPS agree—to investigate, prosecute and punish people in wedding-related businesses for refusing on religious conscience grounds to assist with same-sex weddings. 

“Governments WOULD LIKELY be pressured—and PERHAPS agree—to punish school teachers for refusing on religious conscience grounds to endorse same-sex marriage or for expressing contrary views. 

“Government licensing agencies WOULD LIKELY be pressured—and PERHAPS agree—to investigate and punish counselors for refusing on religious conscience grounds to counsel same-sex married couples on the same terms as heterosexual couples. Religion-based conflicts between public schools and parents WOULD LIKELY increase as children are taught about sexuality and marriage in ways that contravene parents’ and students’ deeply held religious beliefs. 

“Governments WOULD LIKELY be pressured—and might agree—to punish religious colleges and similar institutions for adhering to their views on marriage in such things as married student housing, hiring, and curriculum.”

All of these arguments are based a politics of fear - a politics that plays better in the political realm than in the legal one, where speculation, especially without evidence to back it up, is frowned upon. They are also reflective of a worldview that mixes religion with law - a topic that I will address tomorrow.

Utah's Proclamation on the Family

"The family is ordained of God. Marriage between man and woman is essential to 

His eternal plan. Children are entitled to birth within the bonds of matrimony, 

and to be reared by a father and a mother ..." 

"We declare that God’s commandment for His children to multiply and replenish 

the earth remains in force. We further declare that God has commanded that the 

sacred powers of procreation are to be employed only between man and woman, 

lawfully wedded as husband and wife."

~ The Family: A Proclamation to the World

(by the First Presidency and Quorum of Apostles of the LDS Church)

Utah makes no bones about it. Marriage in Utah is about Utah "family values."

Translation: Marriage in Utah is about Mormon family values. Specifically, marriage is all about children.* This, I think, was the thrust of Utah's opening brief to the 10th Circuit Court of Appeals that was filed late Monday night. And this, given who was hired to handle Utah's appeal, is exactly what I anticipated when the state announced the composition of its legal team a few weeks ago.

There is much that could be written about Utah's brief, but in this post I want to focus on the fact that the State's position on marriage, as embodied in its arguments (as well as in its current laws and policies), is a political and legal embodiment of LDS teachings about the family. 

In its brief, the State argues that its interests in implicitly preserving and enforcing these teachings provide a rational basis for its refusal to legally recognize same-sex marriages. Though the LDS Church is never mentioned in the brief (so far as I recall), anyone who is to any degree familiar with the Church's teachings on the family will recognize these teachings as being reflected in the State's brief. Here are just a few quotes:

"First and foremost, the man-woman definition of marriage promotes the interests of children by fostering a generally child-centric marriage culture that encourages parents routinely to subordinate their own private interests - emotional, sexual, career, recreational, etc. - to the needs of their children, present and future. That encouragement flows not just from the law - including restrictions on divorce and prohibitions on such things as child neglect - but also from the cultural expectations, norms and ideals that make marriage a social institution. In a host of ways, such rules, norms and expectations guide husband-wife couples to sacrifice their personal desires for the benefit of their children"

"Utah's marriage definition furthers the State's vital interest in fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children. At the most basic level, Utah has a critical interest in preserving the child-centric husband-wife ("conjugal") marriage culture that it has carefully nurtured since its inception as a state."

"As presently understood in Utah ... marriage's most vital public purpose is to encourage the creation of stable, husband-wife unions for the benefit of their children."

"[Children are] "a principal object of the marital relationship."

"Utah's self-sacrificing, child-centric view of marriage and parenting is important to a range of parental decisions beyond ensuring that the child is raised by both her father and her mother. For example, it might encourage parents to forego abusing alcohol or drugs; avoid destabilizing extramarital affairs; avoid excessively demanding work schedules; or limit time-consuming hobbies or other interests that take them away from their children."

An interesting exercise is to substitute the words "the LDS Church" for every instance in which "Utah" or "the State" is mentioned in these quoted passages.

Now, while it is generally conceded that the teachings of the LDS Church have traditionally contributed to the stability of Utah's families, as reflected in historically lower divorce rates, lower illegitimacy rates, etc., and while I am fully aware of the importance of the Church's teachings about eternal families to members of the LDS Church - teachings with which I do not take issue in this post - it is wrong for the State to serve as the enforcer of Mormon teachings - even if a majority of the citizens in this state are Mormon.** It is further wrong - and unconstitutional - to use such teachings in order to deny civil rights to a minority of citizens of this state.

* Judge Shelby took issue with this position in his ruling, which I wrote about here. 

** I personally believe that a large percentage of active members of the LDS Church - particularly those under the age of 30 - would take issue with the heavy-handed, conservative, hierarchical view of marriage that is reflected in the State's arguments, resenting the notion that their main purpose in marriage is to produce babies, and the more the better.