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? 

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."

A Fool For a Client: Utah's New Lawyers

I found it very interesting to read about the three attorneys that the State of Utah has hired to defend its ban on licensing or recognition of same-sex marriage.

The lead attorney, Gene C. Schaerr, is, in the words of Sean Reyes, a Utah native who “understands our unique history and community."

As soon as I read that, I knew what Reyes meant: Gene Schaerr is a Mormon who “gets it.”

Yes, he “gets it.” A quick Google search turned up, among other things, a 2012 article in Meridian Magazine (a well-known ezine for Mormons) in which he wrote the following:

“Church members who live in Maryland—or who have friends or relatives living in Maryland—have a wonderful and immediate opportunity to act on our leaders’ recent reminders of the importance of defending traditional man-woman marriage … through what is called “Ballot Question 6” [which would] overturn the same-gender marriage law that narrowly passed the Maryland legislature earlier this year. 

“I can’t promise that future generations of Marylanders will personally thank you for your support: Once this crisis has passed, they likely won’t fully understand the threat that the new Maryland law poses to our culture of marriage or to the welfare of children. But I’m certain there is One who will be very pleased with those who step up and defend traditional marriage during this critical time.”

Schaerr, who has resigned from his law firm, has also worked out some sort of deal with the Salt Lake City-based archconservative “think tank,” the Sutherland Institute. Hmmm.

Schaerr will be assisted by John Bursch, former solicitor general of Michigan who has argued a number of cases before the Supreme Court, and Monte Neil Stewart, each of whom have agreed to cap their fees at $50,000 each, while Schaerr has agreed to cap his fees at $200,000.

Stewart assisted the AG’s office with their successful appeal to the Supreme Court for a stay of Judge Shelby’s December ruling. Stewart received both his undergraduate and law degrees from BYU and appears to have devoted a significant amount of time and effort to fighting marriage equality, not only in Utah but elsewhere in the country.

It turns out that Stewart was a co-chair in 2004 of Utahns for a Better Tomorrow, one of the four sponsors of Utah Amendment 3 which limited marriage to male-female couples and prevented the recognition of civil unions or domestic partnerships. He has also been heavily involved in the founding and  running of the Provo-based Marriage Law Foundation.

I was unable to determine whether Bursch is a Mormon, but it is well-established that Schaerr and Stewart are not only active Mormons but ultraconservative Mormons who, based on their writings, clearly believe they are engaged in a Heaven-blessed crusade to “defend” “traditional” marriage.

Fair enough.

But I have to wonder what kind of job they can do for the State of Utah - which, after all, is not the LDS Church. These men are effectively representing themselves and beliefs that they have spent decades propounding. They are so passionately involved in their “mission,” and quite clearly believe they are on God’s side … Can they be dispassionate enough to engage the proponents of marriage equality? Will they believe so earnestly in the righteousness of their cause that they will be blind to other perspectives that might actually better serve their client?

I certainly hope so. It can’t hurt.

“A lawyer who represents himself has a fool for a client.” 

– Attributed to Abraham Lincoln