Disavowing Family: The LDS Church, Gay Marriage and the Sins of the Fathers

My definition and appreciation of what a family truly is has changed immeasurably since I formally resigned my membership in the LDS Church four years ago. For the better. 

I now enjoy far richer relationships with my children than I ever thought possible when I was an active Mormon. The bonds that we share are not based on rituals and rote teachings but on genuine relationships characterized by unconditional love, acceptance and respect.

Unfortunately, the Mormon Church persists in insisting that was is genuine is artificial and that what is artificial is authentic. Yesterday, news broke that the Church is instituting a new policy that denies its rites and rituals to children of same-sex parents. 

I was immediately reminded of how I felt upon learning that my former stake president had told my daughter, in the middle of a temple recommend interview in advance of her upcoming marriage, that she could love me (even though I am gay), but she could not act on that love by supporting me in any way. In other words, she had been told something similar to what the Church tells gay people: "It's okay that you're gay. But you cannot act upon *it*." And what is "it"? Love.

My children are directly effected by this new policy. Though half of them have already left the LDS Church, our four younger children are still taken to church by their mother, and I have an adult son who remains active in the Church. If that son decides to go on a mission, he will now - in the language of the new policy - need to "specifically disavow the practice of same-gender cohabitation and marriage," and his request to serve will then have to be approved by the First Presidency of the Church. In other words, he will have to denounce me and my husband Mark and will be stigmatized, not because of his own actions, but because of mine. 

In Biblical terms, the sins of the father will be visited upon the children.

The same will be true of my younger children should they remain in the Church and wish in the future to receive what faithful LDS believe are ordinances necessary for salvation.

How sad is it that children be forced to pay the consequences of what the Church deems to be a parent's sin? I am past anger. I am even past disillusionment. I am just sad for what the Church continues to do to families. I am sad that it continues to disavow and turn its back on love. I am sad for my son, and I am sad for the pain that this new policy has already caused my other adult children (and you, too, Nathan). To them I say, carry on in love. Follow your path. Live your truth. Be proud of who you are. I love you.

Marriage Equality and the Gay "Outsider" Culture

I read an article in the New York Times on Friday about the demise of the so-called gay “Outsider” culture. It touched a nerve.

The basic thrust of the piece is that the increasing acceptance of gays and lesbians in our society, culminating in Friday’s Supreme Court ruling, has resulted in the decline of a gay culture that thrived in the wake of Stonewall. It was an “outsider” culture that was defined by oppression from general society and, later, by the devastation of AIDS. It was a counter-culture that celebrated being gay within a protective community that faced a hostile environment. 

It was also a culture that created barriers and stereotypes, both within the gay world and in society at large. Because of this, I welcome its demise. 

Both Mark and I grew to maturity in the 70’s. We both knew we were sexually attracted to men. But unlike others of our generation who found their way to San Francisco or New York or Los Angeles, we did not have the courage to come out. Furthermore, we each looked at gay culture – or what we perceived it to be – and thought, “I’m not like those people. If that is what it means to be gay, then I’m not gay.” 

And so we stayed in the closet, as did many others. “Gay culture,” as it then existed became a barrier instead of an invitation.

Decades later, I am glad that the situation is very different. Because of society’s increased acceptance of gays and lesbians, young people – as well as older closeted men and women – feel safer in coming out and are much less likely to feel that, in doing so, they have to fit into some kind of mold in order to “get into the club.” They can be both gay and themselves, just like heterosexuals can be straight and be themselves. 

There are no stereotypes of what a straight person is or should be. Thankfully, we are coming fully into an age where the same applies to gays and lesbians.

Gems from Justice Kennedy's Majority Opinion

I just finished skimming Justice Kennedy's majority opinion in today's historic decision legalizing same-sex marriage throughout the country. The following passages from that opinion are gems that I gleaned from this first reading.

"The nature of injustice is that we may not always see it in our own times."

"The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter."

"The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era."

"Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied."

"The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act."

"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right."

Today, I am proud to be an American!

God Doesn't Hate Gays, People Do

A lot of thoughts have been swirling around in my head for some time about this country we live in, what it means to be a minority in the "land of the free," the hate that seems to permeate sizable portions of our society, the fear mongers that pass for political leaders, and so-called "Christians" who would be the first to crucify Jesus all over again.*

These thoughts congealed into something yesterday when I read an anecdote about an incident that had happened in Tuesday's oral arguments at the Supreme Court. Despite all the coverage, I hadn't heard about it until I read a short essay in The New Yorker penned by Jeffrey Toobin. Here's the relevant passage:

There was a shocking, ugly moment during the argument of Obergefell v. Hodges, the same-sex marriage case, in the Supreme Court on Tuesday. Right after Mary Bonauto, the lawyer challenging marriage bans in several states, completed her argument, a spectator rose from a back row and started screaming, “If you support gay marriage, you will burn in Hell!” As the man yelled, “It’s an abomination!,” guards carried him from the courtroom. That wasn’t the ugly part, though. In the quiet moment after the man was removed, as his shouts vanished into the hallway, Justice Antonin Scalia filled the silence with a quip. “It was rather refreshing, actually,” he said.

How is it possible that the senior associate justice on the United States Supreme Court, even considering the outrageousness of many of his comments in the past, could make such a statement in such a place at such a time? How indeed.

There was a time when I considered myself a part of America's majority. I am white. I am male. I grew up in a solid middle-class home. I was raised in one of America's dominant Christian denominations (Roman Catholicism). My ancestors had lived in what is now the United States since the earliest days of colonial America. I became well-educated. I never had to worry about being discriminated against because of my race, my religion or my national origin. I never had to worry about police brutality or poverty or being intimidated at the ballot box or being sent to the back of the bus.

I knew what "America" meant. I viewed it through the eyes of the majority, because I was part of the majority. Though I could try to empathize with those who were women or black or Asian or poor or ignorant or Jewish or Muslim, I didn't and couldn't have expected to understand what it meant to be part of a minority in America.

I understand now. At least to some extent.

Though I was always a part of one of America's most maligned and persecuted minorities, I was safe as along as I stayed in the closet. A few years ago, however, I decided I could no longer do that; and so I became a minority. And things changed. For the first time in my life, I viewed America differently.

America was not necessarily the land of the free that I had perceived it to be. America was not necessarily the land of equal rights that I had perceived it to be. All the myths in which I had once been so strongly invested were now the precinct of "them" - the people with all the rights, all the power, all the sense of entitlement; the people who defined "right" because they were in the majority and thus is was their prerogative. America looked different because I was different.

Many of the people in the majority project their sense of "right" onto God. It has always been thus throughout the history of the American Republic and indeed in the histories of those nations who peopled America. God was who the majority said he is, at least as far as it relates to America's civil religion; and our laws have historically been based in large part on what this majority said was their God's will. The Majority god ruled. And the majority was happy, content and too often smug as long as things remained this way.

All of the hoo-haa about religious freedom in the country today is, in my view, a reaction to the majority's projected image of God being challenged in ways they do not at all like. But the only thing threatened in America today respecting religious freedom is this image, a projection that has been used far too long by the majority to impose its will upon others. It is also a projection that has channeled hate, disgust and violence from people to their god and back onto American society. 

God doesn't hate gay people. People hate gay people, and they use their god to justify their hatred. 

This is the sentiment that was spewed by the "protestor" inside the Supreme Court. And it is also the sentiment that lay behind Justice Scalia's "joke." It is well known what Scalia's attitude toward "gay rights" has long been and that he is a "devout Catholic." (So is Pope Francis, but I daresay that he and Scalia are miles apart on this issue and their approach to it.) As Toobin wrote in his piece, "[T]here’s every reason to believe that Scalia more or less shared the protester’s view of the immorality of homosexuality, and that he regards the Court’s toleration of gay people as one of the great disasters of his nearly three decades as a Justice."

Scalia's remark jolted me. It reminded me that I am part of a minority that is despised in certain quarters (some of which are very powerful) of this nation. And it all, sooner or later, comes back to religion and the great God of the majority. 

But the truth remains: God doesn't hate gay people; people do.

_______________

* If the religious right's reaction to a number of Pope Francis' statements and initiatives is any indicator, it's a pretty good bet that Jesus would not be welcome in many places of worship in this country, and he certainly wouldn't we welcome in the what the religious-freedom advocates like to refer to as "the public square," where his views and level of discourse would be, I fear, not at all  welcome.

Same-Sex Marriage in 16th Century Rome

I have been reading a fascinating book entitled, Homosexuality and Civilization, by Professor Louis Compton. I have previously considered blogging about passages of the book; but I read something yesterday that I decided I had to blog about. In concerns an event that occurred in 1578 in Rome.

During the papacy of Pope Gregory XIII (who reformed the calendar and also hounded and burned "sodomites" with a vengeance), the Venetian ambassador to the papal court wrote in a dispatch in 1578:

"Eleven Portuguese and Spaniards have been captured. They had assembled in a church near Saint John Lateran where they had performed some ceremonies ... which sullied the sacred name of matrimony, marrying each other and being joined together as husband and wife. Twenty-seven or more, it is said, were discovered altogether on other occasions, but at this time they were not able to capture more than this eleven, who were given the fire as they deserved."

Another account was written by French writer Michel de Montaigne upon visiting Rome two-three years later. His Travel Journal confirms, as Compton writes, "that the ceremonies were conducted in full seriousness and were an attempt, however foolhardy, to give dignity to relationships the men took seriously. Montaigne wrote:

" ... [At the Church of] San Gionanni Porta Latina [pictured above], in which church a few years before certain Portugese had entered into a strange brotherhood. They married one another, male to male, at Mass, with the same ceremonies with which we perform our marriage services, the same marriage gospel service, and then went to bed and lived together. The Roman wits said that because in the other conjunction, of male with female, this circumstance alone makes it legitimate, it had seemed to these sharp folk that this other action would become equally legitimate if they authorized it with ceremonies and mysteries of the Church. Eight or nine Portuguese of this fine sect were burned."

The story behind this event would make a fascinating read. Obviously at least one priest was involved to say mass and perform the marriages. These men almost certainly knew that they would - if discovered - be burned. Why did they do it? Did someone betray them?  Herein lies a tale worthy of being written about.

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. 

Rev. Jimmy Creech: A Prophetic Voice Affirming Gays and Lesbians

Jimmy Creech at the Regulator Bookstore in Durham, NC. (Photo by Natalia Weedy)

This post was originally published on my Invictus Pilgrim blog in June 2001. As I mentioned in my last post on this blog, I met Jimmy Creech in April 2011 while visiting my sister in Durham, North Carolina.

In May 1984, a closeted gay man in a small town in southeastern North Carolina went to see the pastor of his United Methodist congregation. The man – “Adam” – was upset and announced that he was leaving the church. When the pastor asked why, Adam replied that he could no longer be part of a church “that thinks that I’m some kind of pervert.”

In the exchange that followed, the pastor – Rev. Jimmy Creech – learned that Adam was gay and that he was upset at the new policy, just adopted by the United Methodist Church, which prohibited the ordination and appointment of “self-avowed practicing homosexuals.” “I don’t want to be ordained,” Adam said. “But I don’t want to be told I can’t be because I’m gay. I’m just as moral as anybody, just as good a Christian.”

Before that meeting, Rev. Creech had not known any “self-avowed practicing homosexuals.” After that meeting, he would never be the same.  Creech later wrote:

“That morning, Adam revealed to me a hidden world of oppression in which people who are gay, lesbian, transgender, or bisexual suffer an insidious violence disguised as Christian morality that attacks their very beings, their very souls. It’s a reality created and sustained by the claim that gay people are sick, sinful and criminal, a claim that is declared to be God’s truth in pulpits, courtrooms, workplaces and schoolrooms …The cruelest aspect of this hidden world is that gay people internalize these demeaning proclamations and hate themselves for simply being who they are. It’s a world they cannot escape and have little defense against, except to hide their sexuality and pretend to be someone they are not, or to end their lives.”

Jimmy Creech cared enough about Adam that he decided he couldn’t simply sit back and do nothing. He challenged his own conventional education, religious upbringing and beliefs and began an intensive study of what the Bible did and did not have to say about homosexuality and researched the latest scientific findings concerning homosexuality. 

As a result of his Biblical studies and other research, Rev. Creech came to the conclusion that it was unjust and immoral for the church to maintain anti-LGBT policies and positions.  In the years that followed, he became an outspoken advocate of gay and lesbian rights within his own United Methodist denomination as well as the Christian community generally. 

Rev. Creech’s official ministry as an ordained Methodist minister came to an abrupt end in 1999 when he was “defrocked” in the second of two trials conducted by the Methodist Church in the late 1990’s. He was put on trial the first time for conducting a covenant ceremony between two lesbians at the church in Omaha, Nebraska where he was then pastor, and his second trial resulted from him participating in a similar service involving a gay couple in North Carolina. 

After he was expelled from the ministry, Creech joined the board of Soulforce – an organization that resists religious and political oppression of lesbian, gay, bisexual, transgender, and queer (LGBTQ) people through dialogue and creative forms of nonviolent direct action – where he served as Chairman for five years. Creech remains active in several organizations that campaign for LGBTQ equality and has recently published an account of his life and ministry, Adam's Gift which opens with that meeting in 1984 and culminates in his second trial and its immediate aftermath.

Up until a few weeks ago, I had never heard of Jimmy Creech. I was traveling in the East and read an article about him in a local paper and was intrigued. The next morning, I visited a local bookshop and saw a flyer indicating that he would be doing a reading and book-signing of Adam’s Gift the following evening. I purchased a copy of his book and began reading, looking forward to meeting him the next day.

Speaking as someone who has not only lived in the closet his entire life (until a few months ago) but has also lived the relatively insular life of an active devout Mormon, I was frankly “blown away” as I read Creech’s book, starting with the account of his investigation of the Biblical passages that are usually used to bash gays and of what modern science is contributing to a better understanding of homosexuality.

“It is not behavior that determines and defines a person’s sexual orientation. Rather, sexual orientation is an essential aspect of personality that predisposes a person to be sexually attracted to one-or both, in the case of bisexuals – of the two genders, whether or not the person is sexually active … Orientation does not begin and end with sex acts. It is a constant and vital part of who a person is, encompassing erotic attraction, affection, and bonding, as well as genital activity.”

Wow!  To see that in print, written by a ordained minister in a mainline Protestant faith, was indescribably affirming to me after living in a faith/church for most of my adult life that has denied that “sexual orientation” even exists! I felt like I had just gulped in fresh, clean air after having been locked up in an airless crate.

Creech then goes on to describe how, once his intellectual and theological barriers to an acceptance of homosexuality had fallen, he then had to face and overcome another barrier:

“… the emotional resistance of my culturally conditioned assumptions about healthy sexuality, assumptions shaped more by fear and misinformation than by knowledge and understanding. Deep within my psyche, fighting against my new knowledge, as an irrational revulsion to the idea of men having sex with men …  It would take much more time and work before this barrier would fall, too. That would happen because of the humanity, dignity and integrity of people like Adam whom I would get to know. Books changed my mind.  These people changed my heart.”

Jimmy Creech at a Soulforce event in Lynchburg, Virginia in 1999. (Photo from Soulforce Archives)

The people who helped change Jimmy’s heart were initially located in Raleigh, North Carolina. A few years after his meeting with Adam, he became pastor of a large Methodist church in Raleigh. Here, he put his newly acquired knowledge into action.  He marched in his first gay pride parade. He helped found the Raleigh Religious Network for Gay and Lesbian Equality. He met and ministered to men dying of AIDS. He worked to make his own congregation more accepting and welcoming to members of the LGBTQ community, but was ultimately dismissed from his position as pastor. He then worked with the North Carolina Council of Churches for several years, focusing on LGBTQ issues, before being asked to become pastor of the large First United Methodist Church in Omaha, Nebraska.

The bulk of Rev. Creech’s book deals with the time he spent in Omaha, including the events that led to his two trials, the trials themselves, and the immediate aftermath of his ejection from the ministry. This account was interesting in its own right, but what I found compelling and incredibly enlightening and empowering were his statements concerning the morality of “heterosexism” – a term used to describe “a system of attitudes, bias, and discrimination in favor of opposite-sex sexuality and relationships.” These statements included the following, which formed part of his response in connection with his first trial:

“It is my belief that the position taken by The United Methodist Church regarding same-gender unions, as well as that regarding ‘the practice’ of homosexuality, is wrong, unjust, discriminatory and inconsistent with the spirit of Christ and our Wesleyan and Methodist traditions … 

“Sexual orientation is not a moral issue; it is morally neutral. Sexual ethics are simple:  sexual relationships should be mutual, non-exploitative, nurturing and loving. What is immoral are unequal, exploitative, abusive and unloving sexual acts toward another person. This is true regardless of the orientation of the persons involved. I believe that sexual activity which is considered moral when practiced by two people of different genders, is no less moral when practiced by two people of the same gender … 

“I believe that the sin of heterosexism is no less a sin that that of racism. While some of the dynamics may be different, they are fundamentally identical in nature as an expression of a dominant culture over another. 

“Just as it was the church in the South that perpetuated racism so that slavery and white supremacy could have legitimacy, the Christian church has been responsible, more than any other institution, for perpetuating the sin of heterosexism as a form of control over what is feared within all of us: the mystery of human sexuality and intimacy (sexual or non-sexual) with persons of the same gender.”

Wow! 

Jimmy Creech during the Millenium March in Washington in 2000. (Photo by Chuck Phelen)

We who are part or have come out of the Mormon tradition think of the term “prophet” in a unique way:  we automatically think of the president of the LDS Church, and we usually associate the term “prophetic voice” with a “voice of warning”, i.e., a statement that typically warns of undesirable results if the Lord’s commandments are not honored and obeyed. 

In the traditional Christian church, however, there is a different connotation associated with the term “prophetic ministry.” As one definition has stated it, “Prophetic ministry involves incorporating God’s reign of compassion, justice, generosity, and joy into personal values and actions, institutional structures, and governmental policies. It includes leading congregations to be alternative communities that look and act like God’s reconciled and redeemed community where “the orphans, widows, and strangers” are welcomed at God’s table of peace and abundance.”

Or as has been expressed by Creech’s own United Methodist Church:

“The Church, throughout history, has maintained that faithful ministry must be prophetic. The church must not be afraid to boldly speak its ‘convictions … to the church and the world’ ... Active participation in social ministry and advocacy for social justice are deeply rooted in the history of the United Methodist Church … Methodism's founder John Wesley preached boldly in the public square against slavery, beverage alcohol, war, and economic injustice … In the 19th century faithful Methodist women and men followed Wesley's lead in opposing slavery, and in organizing the temperance movement … In the 1950s and 60s, faithful Methodists demonstrated and worked tirelessly for civil rights for all Americans in a time of widespread segregation and blatant racial injustice.

“History has proven that many positions taken by the church through the years, though often controversial in their day, have been proven with time to be both right and just. As the Body of Christ we are called to be bold witnesses, not just to one another, but to the world; to proclaim the good news of God's grace and call, not just in the church but also in the public square; to witness to society not only when it does right but also when it does wrong. This is our prophetic call.” 

It is in this tradition that Jimmy Creech has raised a prophetic voice, calling for equal treatment of ALL of God’s children, boldly denouncing, even at the cost of his calling as congregational pastor, injustice and immorality. It is a voice that brings hope and light to dark places, a voice of love, affirmation and compassion to those who often face misunderstanding, rejection and hate. It is a voice, I would suggest, that reflects the true love of God and a voice from which gay and lesbian Mormons could profit and learn.

Creech concludes Adam’s Gift with a truly prophetic statement that calls each one of us to assist in its fulfillment:

“Gay, lesbian, bisexual and transgender people will be successful in attaining full civil and human rights and social acceptance because of those among them who believe in their inherent dignity and integrity and have the courage to let the world know who they really are … It’s a gift that all lesbian, gay, bisexual and transgender people have to give.  And by giving it, they change the world for good.”

I submit that the voice that Jimmy Creech raises is one that needs to be heard by us who are gay or lesbian and who come out of the Mormon tradition. It is a voice of affirmation and acceptance: one that we are not accustomed to hearing. The perspectives that he shares are ones we need to contemplate; they are ones to which we are not normally exposed. The love that he preaches and the equality that he demands are our birthright; we need to claim them. In so doing, we can change ourselves, our church and our world for the better.

As I mentioned in my last post, Jimmy Creech graciously accepted an invitation to speak at the first Circling the Wagons Conference. Additional information about his visit, as well as links to two of his addresses at this conference, can be found here.

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? 

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." 

Those Uppity Gays

In commemoration of Utah filing its brief late last night with the 10th Circuit Court of Appeal, I am republishing this piece which was originally written during the Chick-fil-A controversy and published on another of my blogs, Beyond the Closet Door (now closed). I have updated certain aspects of the post to reflect contemporary events.

Recent events in Utah and around the country with respect to marriage equality remind me of a period of time in recent American history when a segment of our society that tried to assert what it believed to be its civil rights and dignity was brutally repressed, particularly in a certain section of the country.

I refer, of course, to African-Americans – which is certainly not what they were called back then.

Recently, I loaned our copy of The Help to my young teenage son to watch. He told me later that he enjoyed the movie but was appalled that black people were actually treated that way. I was dismayed, but not surprised I suppose, that he knew so little about what things were like “back then.”  

My son has probably never even heard the word “nigger.” The thought that a black person was forced to use separation public washrooms, was expected to sit at the back of the bus, was expected to remember her place, was expected to accept second-class citizenship and (perhaps most of all) was expected not get “uppity” and aspire to being treated equally – all of this was beyond the pale of my son’s comprehension.

I gave him a very brief history of what it was like, what I remember watching on the news growing up in the 60’s. What I didn’t go into was the way segregation was viewed by society at large, particularly in the South. How in those days, sermons were preached in many pulpits about the propriety of keeping things “the way God intended them to be.” How those who were trying to change things were called “agitators” and were routinely intimidated, beaten or even murdered. How most people were simply part of the “silent majority” who didn’t commit acts of violence but who nevertheless – to one degree or another – agreed with those of their ilk who were committing acts of violence, whether government-sanctioned (e.g., police) or acts of vigilantism. 

What I think he would have had the most trouble comprehending, however, is the concept that African-Americans were expected to just accept the order of things as dictated by the racist white majority. Blacks were expected to see themselves as inferior, because of course they were. No amount of “agitation” could change the religiously-sanctioned (and even promoted) view that blacks were inferior to whites and needed to be treated so. What really enraged certain segments of the white population in the South (as well as elsewhere in the country) was when blacks simply refused to accept this status-quo. How dare they be so uppity!

So, here we are in 2014, and the same thing is going on – only this time, it’s the gays that are being uppity. Certain segments of the population are perhaps willing - at least publicly - to accept the existence of homosexuals, but they are enraged that gays presume to aspire to the same degree of civic equality as heterosexuals. They insist that gays accept second-class status and are infuriated (or express other, varying degrees of indignation) when we refuse to do so.

To me, the Chick-fil-A thing, as well as Marriage Equality in Utah (and elsewhere) is all about Dignity. Vast swaths of our society expect us to accept their world-view, their beliefs about ourselves and their views as to what we are entitled in the way of civil rights. The fact that we refuse to do so makes some of them practically foam at the mouth, whereas others look on in cold, stoney silence.

I wonder, will my grandchildren, 40 years from now, express incredulity that a minority in our society was discriminated against, suffered acts of violence and was expected to know their place and keep it? Will they find it difficult to comprehend that religious organizations actively participated in this discrimination and fostered this intolerance and hate? Will they wonder why a majority of society simply accepted this situation as being part of the natural order of things?

I hope so.

Marriage Equality: Rationality vs. Irrationality

Legislatures sometimes do some really irrational things. And sometimes, they or other groups in society prompt the populace as a whole to do some irrational things. And that's one of the reasons we have federal courts in this country: to review such actions to determine whether they are rational or irrational in light of the law of this land.

Specifically, a law that discriminates against a certain class of society must, at the very least, be rationally connected to a legitimate government purpose. If the law fails that test, then it is unconstitutional and must be struck down.

Case in point: Kitchen v. Herbert, the case that resulted in several Utah laws being struck down as unconstitutional, including Amendment 3 to Utah's state constitution (which I'll refer to collectively as the "Traditional Marriage Laws"). 

Another case in point that followed on the heels of Kitchen was Bishop et al v. Oklahoma et al, in which Federal District Court Judge Terence Kern ruled that Oklahoma's constitutional amendment banning same-sex marriage was also unconstitutional. 

The States of Utah and Oklahoma (the latter's interests represented by Tulsa County Clerk) were each obliged to defend these laws by, among other things, proving to the court that there is a rational connection between refusing to permit or recognize same-sex marriages and legitimate government purposes.

We're going to hear a lot about rational connections and legitimate government purposes in the months ahead as Kitchen v. Herbert and Bishop climb the appellate food chain (the 10th Circuit Court of Appeal will hear each case), perhaps all the way to the Supreme Court. So, I think it's worth taking a look at some of the "legitimate government purposes" that Utah claims justifies its Traditional Marriage Laws, claims that were echoed in the Bishop case.

Morality

Let's speak some truth here: Though the State of Utah and Anti-Marriage Equality advocates like to talk about preserving traditional marriage and the welfare of children - lots and lots of talk about the welfare of children - the bottom line is that these arguments (sometimes thinly veiled) are an attempt to hide the real reason they are against marriage equality, i.e., they believe homosexuality is immoral.

In his decision, Judge Kern in Bishop addressed the line of argument that the State has a rational interest in restricting marriage to heterosexual couples because homosexual behavior is immoral. 

“The Court recognizes,” he wrote, “that moral disapproval often stems from deeply held religious convictions … However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law.” Quoting from the landmark decision of the Supreme Court in Lawrence (a decision which ruled that states cannot criminalize consensual gay sex), Judge Kern points out that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” 

In Kitchen, Judge Shelby addresses this point by quoting from Justice Scalia in Lawrence when he wrote, “‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same- sex couples.” And from another Supreme Court case, Shelby takes another quote when he writes, "'[While] [p]rivate biases may be outside the reach of the law, . . . the law cannot, directly or indirectly, give them effect' at the expense of a disfavored group’s constitutional rights." [Palmore v. Sidoti]

Preserving the Traditional Definition of Marriage

Another favorite of Anti-Marriage Equality advocates is the proposition that preserving the traditional definition of marriage is itself a legitimate state interest. 

Judge Shelby deals with this argument in Kitchen by quoting from Supreme Court precedent to note that "tradition alone cannot form a rational basis for a law": "[N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack" [Williams v. Illinois], and “[a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.” [Heller v. Doe].

Responsible Procreation

In Kitchen, the State of Utah advanced the argument that “[t]raditional marriage with its accompanying governmental benefits provides an incentive for opposite-sex couples to commit together to form [] a stable family in which their planned, and especially unplanned, biological children may be raised.”

Judge Shelby dealt with that argument as follows: 

"The State has presented no evidence that the number of opposite-sex couples choosing to marry each other is likely to be affected in any way by the ability of same-sex couples to marry. Indeed, it defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts. Both opposite-sex and same-sex couples model the formation of committed, exclusive relationships, and both establish families based on mutual love and support. If there is any connection between same-sex marriage and responsible procreation, the relationship is likely to be the opposite of what the State suggests. Because Amendment 3 does not currently permit same-sex couples to engage in sexual activity within a marriage, the State reinforces a norm that sexual activity may take place outside the marriage relationship."

Judge Kern in Bishop expressed similar sentiments:

[T]here is no rational link between excluding same-sex couples from marriage and the goals of encouraging “responsible procreation” among the “naturally procreative” and/or steering the “naturally procreative” toward marriage. If a same-sex couple is capable of having a child with or without a marriage relationship, and the articulated state goal is to reduce children born outside of a marital relationship, the challenged exclusion hinders rather than promotes that goal."

Optimal Child Rearing

Utah and Oklahoma both advanced arguments the State has an interest in "optimal child rearing" and that a prohibition of same-sex marriages advances this interest. Neither Judge Shelby nor Judge Kern were convinced.

Judge Shelby:

"There is no reason to believe that Amendment 3 has any effect on the choices of couples to have or raise children, whether they are opposite-sex couples or same-sex couples … If anything, the State’s prohibition of same-sex marriage detracts from the State’s goal of promoting optimal environments for children. The State does not contest the Plaintiffs’ assertion that roughly 3,000 children are currently being raised by same-sex couples in Utah. These children are also worthy of the State’s protection, yet Amendment 3 harms them for the same reasons that the Supreme Court [in Windsor] found that DOMA harmed the children of same-sex couples. Amendment 3 'humiliates [] thousands of children now being raised by same-sex couples.' ... Utah’s prohibition of same-sex marriage [also] further injures the children of both opposite-sex and same-sex couples who themselves are gay or lesbian, and who will grow up with the knowledge that the State does not believe they are as capable of creating a family as their heterosexual friends."

Judge Kern, in Bishop: 

"The Court assumes, for purposes of this motion for summary judgment only, that (1) the “ideal” environment for children must include opposite-sex, married, biological parents, and (2) that “promoting”this ideal is a legitimate state interest. Again, however, the question remains whether exclusion of same-sex couples promotes this interest, or is simply a guise for singling out same-sex couples for different treatment due to “moral disapproval” of a same-sex household with children. Smith [Oklahoma] has not articulated, and the Court cannot discern, a single way that excluding same-sex couples from marriage will “promote” this “ideal” child-rearing environment."

Proceeding With Caution: Negative Impact

In Kitchen, Utah contended that it has "a legitimate interest in proceeding with caution when considering expanding marriage to encompass same-sex couples." But Judge Shelby ruled that the State was not able to cite any evidence to justify its fears. 

Similarly, in Bishop, the State argued that avoiding a redefinition of marriage that would “necessarily change the institution and could have serious unintended consequences.” Judge Kern dealt with this argument as follows:

"The 'negative impact' argument is impermissibly tied to moral disapproval of same-sex couples as a class of Oklahoma citizens. All of these perceived 'threats' are to one view of the marriage institution – a view that is bound up in procreation, one morally “ideal” parenting model, and sexual fidelity. However, civil marriage in Oklahoma is not an institution with “moral” requirements for any other group of citizens.

"[The Tulsa County Clerk] does not ask a couple if they intend to be faithful to one another, if they intend to procreate, or if they would someday consider divorce, thereby potentially leaving their child to be raised in a single-parent home. With respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex couples without any moral, procreative, parenting, or fidelity requirements. Exclusion of just one class of citizens from receiving a marriage license based upon the perceived “threat” they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class. It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships."

That last sentence is a perfect way to end this post: The gist and effect of all of the arguments advanced by so-called "traditional marriage" advocates can be summed up as follows:

"Exclusion of [gays and lesbians] from receiving a marriage license ... is insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships."