Whoa, Utah?!

Yesterday a federal judge overturned a Utah state constitutional amendment adopted in 2004 that limits marriage to opposite-sex unions. Who would have thought that this would occur right now in the Mormon heartland?! I read through much of the judge’s legal opinion this morning and was pleased to find that he cogently addressed many of the arguments that have been made over the years by opponents of same-sex marriage.

This ruling may not be the end of the matter as far as Utah and gay marriage is concerned, but for the time being, wow! Some excerpts from yesterday’s ruling:

“The Constitution guarantees that all citizens have certain fundamental rights. These rights vest in every person over whom the Constitution has authority and, because they are so important, an individual’s fundamental rights ‘may not be submitted to vote; they depend on the outcome of no elections.’ W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).” (p.17)

“The right to marry is an example of a fundamental right that is not mentioned explicitly in the text of the Constitution but is nevertheless protected by the guarantee of liberty under the Due Process Clause. The Supreme Court has long emphasized that the right to marry is of fundamental importance.” (p.18)

“The State [of Utah] asserts that Amendment 3 does not abridge the Plaintiffs’ fundamental right to marry because the Plaintiffs are still at liberty to marry a person of the opposite sex. But this purported liberty is an illusion. The right to marry is not simply the right to become a married person by signing a contract with someone of the opposite sex. If marriages were planned and arranged by the State, for example, these marriages would violate a person’s right to marry because such arrangements would infringe an individual’s rights to privacy, dignity, and intimate association. A person’s choices about marriage implicate the heart of the right to liberty that is protected by the Fourteenth Amendment. See Casey, 505 U.S. at 851. The State’s argument disregards these numerous associated rights because the State focuses on the outward manifestations of the right to marry, and not the inner attributes of marriage that form the core justifications for why the Constitution protects this fundamental human right.” (p.23-24)

“The State points to Supreme Court cases that have linked the importance of marriage to its relationship to procreation. … The court does not find the State’s argument compelling because, however persuasive the ability to procreate might be in the context of a particular religious perspective, it is not a defining characteristic of conjugal relationships from a legal and constitutional point of view. The State’s position demeans the dignity not just of same-sex couples, but of the many opposite-sex couples who are unable to reproduce or who choose not to have children.” (p.25)

“The State argues that the exclusion of same-sex couples from marriage is justified based on an interest in promoting responsible procreation within marriage. … 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.” (p.44)

“The State’s second argument is that the Plaintiffs are really seeking a new right, not access to an existing right. … The alleged right to same-sex marriage that the State claims the Plaintiffs are seeking is simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond. … If the right to same-sex marriage were a new right, then it should make new protections and benefits available to all citizens. But heterosexual individuals are as likely to exercise their purported right to same-sex marriage as gay men and lesbians are to exercise their purported right to opposite-sex marriage. Both same-sex and opposite-sex marriage are therefore simply manifestations of one right—the right to marry—applied to people with different sexual identities.” (p.27-28)

“The Fourteenth Amendment protects the liberty rights of all citizens, and none of the State’s arguments presents a compelling reason why the scope of that right should be greater for heterosexual individuals than it is for gay and lesbian individuals. If, as is clear from the Supreme Court cases discussing the right to marry, a heterosexual person’s choices about intimate association and family life are protected from unreasonable government interference in the marital context, then a gay or lesbian person also enjoys these same protections. The court’s holding is supported, even required, by the Supreme Court’s recent opinion concerning the scope of protection that the Fourteenth Amendment provides to gay and lesbian citizens.” (p.30)

“As noted in the court’s discussion of fundamental rights, the State argues that preserving the traditional definition of marriage is itself a legitimate state interest. But tradition alone cannot form a rational basis for a law. The traditional view of marriage has in the past included certain views about race and gender roles that were insufficient to uphold laws based on these views. And, as Justice Scalia has noted in dissent, ‘’preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.’ Lawrence, 539 U.S. at 601 (Scalia, J., dissenting). 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, 466 U.S. 429, 433 (1984).” (p.48-49)

“Although the State did not directly present an argument based on religious freedom, the court notes that its decision does not mandate any change for religious institutions, which may continue to express their own moral viewpoints and define their own traditions about marriage. If anything, the recognition of same-sex marriage expands religious freedom because some churches that have congregations in Utah desire to perform same-sex wedding ceremonies but are currently unable to do so.” (p.49)

“Applying the law as it is required to do, the court holds that Utah’s prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.” (p.2)

Tender ironies

I don’t believe very strongly in Mormon doctrine anymore. As I have written on this blog before, I still find much good in the teachings of the Church. And of course, I very much like many of its current and former members. While it is neither necessary nor productive to turn over every doctrinal cobble, I have suffered enough of my unease over Church history and policies in silence, and no longer feel as compelled to self-censor my thoughts.

This week, a three member panel of the Ninth Circuit Court of Appeals upheld an earlier judicial finding that Proposition 8 in California is unconstitutional. Of course, further legal wrangling is all but certain, but along with Washington State being on the cusp of legalizing gay marriage, this ruling was one more small step towards marriage equality in the US. The following was part of the majority opinion:

“Proposition 8 serves no purpose, and has no effect, other than to lessen the status and dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for ‘laws of this sort’.” Further the court determined, “The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry.” (1)

In response to the ruling by the Ninth Circuit, the Church of Jesus Christ of Latter-day Saints issued a short statement on Tuesday that reads in part:

“The Church…regrets today’s decision. California voters have twice determined in a general election that marriage should be recognized as only between a man and a woman. We have always had that view. Courts should not alter that definition … Millions of voters in California …expressed their desire, through the democratic process, to keep traditional marriage as the bedrock of society …”. (2)

Obviously, the Church is welcome to express its opinion on the merits of gay marriage. Superficially, press room responses like the one above give the impression that the Church holds a simple and popular position. However, like so much in Mormonism, one needs to dig a little deeper to find the deep ironies that sometimes characterize the deceptively simplified narrative the Church offers. In other words, some historical context is needed.

Point 1: The Church repeatedly avows its loyalty to the US Constitution, but in its response to the judicial ruling by the Ninth Circuit, it is being selective. Its statement lauds the initiative process but attacks the judicial functions of balanced government. In doing so, it joins, at least in spirit, other conservatives who decry the actions of “activist judges” with whom they disagree. The complete system of governance in the United States involves not only means for the majority to enact law, but institutions and concepts such as checks and balances that are designed to protect the rights of the people. Fundamental civil rights, especially minority rights, are not intended to be subject to the whims of the majority. The judiciary plays a prominent role in preventing discrimination by the majority. (3)

Point 2: The Church is on shaky ground invoking the supremacy of the democratic process in matters of public policy, because its own structure and modus operandi are far from democratic. The Church is a theocracy, ruled by 15 unelected men who are the final voice in matters of doctrine and policy. Exercise of power at all levels in the Church is supposed to be done in love and righteousness (a laudable goal), but regardless, Church governance flows structurally from top to bottom. It is not democratic. Even if we ignore the silliness of a theocratic institution lecturing on democratic principles, I wonder what the Church will argue when the day comes that the voice of the people in a particular state approves gay marriage. Public opinion on gay marriage is changing, and it is changing very quickly.  Prop 8 did not pass by an overwhelming majority in California.

Point 3: In its very active political opposition to gay marriage, the Church is actively campaigning against the legitimate aspirations of a minority people. In seeking marriage equality, gays are not interfering in the liberties of others, but seeking only to advance their own pursuit of happiness. The Church’s own history of persecution as an unpopular minority should invoke, at a very minimum, deep empathy for LGBT persons who are fighting for equality under the law. Driven from Ohio to Missouri to Illinois, then to Utah, attacked by mobs, and having suffered terrible hardships in the course of pursing their faith in the 1800s, Latter-day Saints are well acquainted with the injustices perpetrated by intolerant neighbors and hostile laws. Nineteenth century Mormons by and large wanted to be left alone to pursue their way of life; twenty-first century gays by and large want to be left alone to love who they love.

Point 4: Recently Church leaders have linked the advance of gay marriage to threats to religious liberty. These arguments are as much of a smokescreen as a genuine concern. Elder Dallin H. Oaks (4) and others (5), for example, may claim that gay marriage infringes conservative religious freedoms, but eliminating the opportunity for gay marriage infringes the rights of other religious groups and individuals to perform marriages that they believe are equally acceptable to God. The religious freedom argument is a twisted one: the Church is seeking freedom from the beliefs of others, not freedom to define its own beliefs. As long as the Church is not forced to perform gay marriages, change its doctrine, or alter its own practices in any substantive way, its religious freedom is not infringed. Of course there may be some legal complexities and some need for compromise to both implement legal gay marriage and preserve freedom for certain religious viewpoints, but blanket prohibition of gay marriage is not acceptable. Hearing a wealthy conservative religion with a public voice disproportionate to its actual membership size crying victim is a little pathetic.

Point 5: Finally, there is great irony in hearing appeals for “traditional marriage” from Latter-day Saint leaders. As much as Church leadership may prefer to whitewash its own controversial history with sexuality, polygamy was a major component of Mormon theology for decades before the practice gradually faded away during the late 1800s and early 1900s following intense public disapproval and persecution from the US government (6). Moreover, monogamous heterosexual marriage – the way much of the rest of modern western society might have defined “traditional” marriage until recently – isn’t a completely accurate expression of current Mormon views of marriage anyway. Theologically, polygamy remains a component of mainstream LDS views because a man can be sealed to more than one woman during the course of his life as long as only one of the women is alive at the time – polygamy is thus believed to exist in the next life (7). Joseph Smith, the first LDS President and founder of polygamy among the Saints, had many wives, some of these women being already married to other men at the time he courted them and one being as young as 14 years old (8). Thus, early Mormons practiced both polygamy and polyandry. Brigham Young and subsequent leaders of the Church continued polygamy for several decades and defiantly challenged laws that prohibited the practice (9). Unfortunately much of this history occurred under a mantle of secrecy and deception so it is perhaps not even well known to most Latter-day Saints. Whether we’re talking about the 1800s or 2012, early Mormon sexuality represented some very unconventional experimentation with marriage! The Church’s position on gay marriage may be consistent over the short span of time that it has been debated openly, but its broader sexual history probably wouldn’t be deemed “traditional” to most people today.

Why the Church has invested so much energy into public opposition to gay marriage is beyond my comprehension. I can only speculate. But the ironies inherent in its political opposition are blatantly obvious to anyone who takes a careful look at Church history, doctrine, and culture. My conclusion is that the Church is exhibiting a bewildering disregard for its own history and culture in the process of publicly defending its position on gay marriage. Perhaps for those of us who have taken the courage to oppose the Church on marriage equality, our frustrations with its position are tempered by this thought: these ironies remind us that we are on the right side of history.

Notes:

(1) Ninth Circuit opinion.
(2) LDS statement.
(3) The desegregation of schools mandated by Brown v. Board of Education is an excellent example of judicial sanity in the face of majority discrimination.
(4) Elder Oaks’s speech at Chapman University.
(5) An open letter from several religious conservatives.
(6) Official Declaration 1, contained in the Doctrine and Covenants, comprises the 1890 manifesto by President Wilford Woodruff that banned polygamy, at least in the US. Despite the modern tendency to interpret this document as a revelation, and perhaps to believe that polygamy ended abruptly upon its reciept, the history is not so clear cut and polygamous marriages continued into the 1900s. For instance, polygamous LDS colonies were created in northern Mexico even though the practice was illegal since 1884 in that country. The Church acknowledges these post-manifesto plural marriages and that phasing out of polygamy was a gradual process. See Quinn, D.M. 1985. LDS Church authority and new plural marriages, 1890-1904. Dialogue 18:11-107 at this link.
(7) The term sealing refers, in part, to an eternal marriage in LDS theology. Theologically, polygamy is enshrined in LDS doctrine in section 132 of the Doctrine and Covenants.
(8) This site contains very detailed information on early plural marriages in the Church including source documentation for most of the claims in the document. Most of Joseph’s additional marriages appeared to have occurred during the last few years of his life.
(9) Quinn, D.M. 1985. LDS Church authority and new plural marriages, 1890-1904. Dialogue 18:11-107.

I'm sorry, California

“We do not believe it just to mingle religious influence with civil government, whereby one religious society is fostered and another proscribed in its spiritual privileges, and the individual rights of its members, as citizens, denied.” – Doctrine and Covenants 134:9 (1835, Kirtland, Ohio).

The unfolding of Proposition 8 was bitter, with ugliness on both sides. My Church was heavily involved in promoting the divisive measure, a short amendment to the California constitution that reads: “Only marriage between a man and a woman is valid or recognized in California”.¹ After months of divisive debate, Prop 8 passed in California with 52% of the vote. Some estimates suggest that contributions by Mormons to pass the proposition totaled 20-30 million dollars.² This amounted to about 50-75% of the funding in support of the proposition even though Latter-day Saints constitute only about 2% of the population of California. In sum, over $80 million was spent in the campaigns for and against Prop 8, an amount that apparently made it the costliest social issue to reach the nation’s voters up to that time.³

Modeled after earlier efforts to combat same-sex marriage in Hawaii, Church participation in the Prop 8 campaign was channeled through a coalition.⁴ In the 1990s, Hawaii became one of the first states to confront the issue of gay marriage after a case claiming same-sex marriage discrimination made it to the state supreme court.⁵ D. Michael Quinn, a gay Mormon historian, described Church involvement in the Hawaiian campaign against same sex-marriage at both the local level and at Church headquarters.⁶ In fact, Quinn argued that the Church model of political participation via a coalition was patterned after its active opposition to the Equal Rights Amendment during the 1970s. The LDS Church is officially politically neutral and does not endorse specific candidates for elected office, but it strongly asserts its political muscle in matters it finds to be of a moral nature. However, of the numerous moral issues over which the Church might become a vocal political participant (including poverty, abuse, totalitarianism, etc.) repeated political engagement with same-sex marriage rights in various states suggests that it has decided that the fight against gay marriage is of the highest priority.

Proposition 8 brought substantial media attention to the public debate about same sex marriage, but of course it was only a relatively recent event in a long series of political battles within California about same-sex marriage – Prop 22, Mayor Newsom, Judge Walker, the California Supreme Court – this continues to be an on-going saga.

In 2000, I was a new graduate student in southern California. At this point in my life I was very committed to being a faithful Latter-day Saint and was almost thoroughly in the closet about my own homosexuality. This was the season of Prop 22, an initiative put before voters that had exactly the same text as its successor, Prop 8. Passage of the proposition was promoted at that time, as I recall, as being necessary to ensure that California was not forced to recognize any same-sex marriage performed in another state. Same-sex marriage had not yet been made legal at that time in California, so this was a proactive move to halt the legal recognition of same-sex marriages that might be performed elsewhere. Whatever reservations a voter might have had about limiting gays’ rights to be married (e.g., libertarian proclivities), Prop 22 (at least as promoted) could appeal to the state’s rights sentiments of some Americans. Prop 22 passed by a large majority, and by 2005, a court ruled that Prop 22’s power not only limited recognition of out-of-state gay marriage but also prohibiting the performance of same-sex marriages within California itself.⁷

As with Prop 8 later on, the Church actively encouraged membership participation to ensure that Prop 22 was enacted.⁸ I recall participating one day in a small effort to show support for the proposition. Our local institute (young adult religious education) group on campus had set up a booth along the wide walkway that led up to the university library. With a few other students, I hovered around the booth for a short time one day. I don’t recall staying that long or probably doing much more than handing out some pamphlets. Years later, reconstructing my thoughts and feelings of that experience would be difficult, but I can only imagine that I was an uncomfortable mess of emotion and conflict. In the strange myopia that being in the homosexual closet brings, in this season of life I was also probably as much concerned about blowing my carefully-crafted cover as a straight person as I was over the glaring juxtaposition of my own homosexuality and my Church’s anti-gay positions.

In 2008, as Prop 8 efforts began to ramp up, Church pressure on California Mormons to “defend” marriage began again. At first, polls suggested that opponents of the proposition might prevail, representing apparently a large shift in voter sentiment from 8 years prior. This fact did not escape the attention of Church leadership. In official letters from headquarters at Salt Lake City, members were asked to help directly. Local leaders were then responsible for on-the-ground work. Perhaps like all congregations throughout California, our ward appointed a coordinator to lead local efforts. In my ward in a more liberal community in northern California, it was mentioned that members should act with respect. This message of respect for all, even LGBT persons, characterizes official Mormon communications, even if it is not practiced by all members. With Church membership mobilized, the fight was now on. Statewide, there were phone banks, donations, rallies.

By the time Proposition 8 came along and wedged itself for a season into the religious routine of Latter-day Saints, my mechanical acquiescence to the Church was beginning to erode. With a good friend in a key position in local Church leadership, I was still very much willing to listen to arguments against same-sex marriage. More than just an appeal to faith, were there solid rational arguments to oppose gay marriage? My friend and I had some discussions and I listened to his arguments, that now I can more readily identify as classic conservative reasons to oppose same sex marriage.⁹ For instance, a basic argument is that the principle function of marriage is to have and raise children. Gay unions obviously cannot lead to procreation.

As each of these types of arguments were advanced, I could recognize a basis of logic, but there were also valid counter-arguments. The procreation basis for marriage, for instance, suggests that there is no need for marriage for older couples well past child-rearing age or men and women who are unable physically or emotionally to have children. Thus, inconsistent logic emerges from this particular conservative argument – marriage exceptions can be made for heterosexual unions, but not homosexuals.

Shortly after the vote on 4 November 2008, Californians learned that Proposition 8 passed. From time to time an opinion is expressed that the Church was burned fairly badly by its involvement in Prop 8, though I think ultimately it is hard to quantify such an assertion. Certainly specific members were disaffected to varying degrees (some left the Church, others remained active but had wounded testimonies). Did tithing decline? How many members resigned? No doubt that inside and outside the Church, it’s fundamental opposition to gay marriage was and is unpopular with many people. Unfortunately, there seems to be a deeper feeling of distrust that emerged from the Prop 8 episode. In part, it was the tactics used in the political mobilization that left unease – the disproportionate sum of money, Utah meddling in California, and the discussion of politics in meetings where members were supposed to gather for spiritual refuge.

Despite the negative effects of Prop 8 in California, Church involvement in the crusade against same-sex marriage continues. A very recent report from Minnesota describes a letter from Church headquarters asking members to contribute to an anti-gay marriage initiative that will appear on the 2012 ballot.¹⁰ Also this month, a coalition of conservative religious individuals posted an open letter on-line opposing homosexual marriage.¹¹ This particular letter was signed by Bishop Burton, a member of the presiding bishopric of the Church. Recent manifestations of the LDS crusade perhaps have taken on a new political tact, namely that adoption of same-sex marriage by governments will lead to a restriction on religious liberties.¹² The letter Bishop Burton signed, in fact, explicitly complains that religious liberties will be infringed if same-sex marriage becomes a protected right. Without a legal background, I don’t know the various legal implications that same-sex marriage would bring. However, the recent law in New York State seems to carve out a reasonable exception for religious freedom while enabling same-sex marriage. Intentional or not, claiming that gay marriage restricts religious freedom makes the comfortable majority appear to be the victim. What about the religious freedom of individuals who believe that God sees people of all sexual orientations as deserving equal treatment?

During Proposition 8 my most overriding feeling was that I wanted the entire debate to disappear. The larger political debate hit too close to home: my own microcosm of conflict between being gay and Mormon suddenly was being played out on a grand scale. No one in this larger debate was necessarily going to respect the internal sensitivities that I cultivated to prevent the conflict from erupting in fury within my own soul. Gays and devout Mormons each felt that they had an important stake in this debate. But what about persons who were gay AND Mormon? In response to the conflict, I largely chose non-response; I wanted to hide and wait for the election to pass. In the end, I voted in support of Prop 8 just as I had done with Prop 22. It was a reluctant vote, one born of guilt from not following what the Church expected of me I suppose. That day at the ballot box, I tried to balance my disappointment stemming from Prop 8 with my excitement about an engaging presidential election. But on the issue of gay marriage, I was not yet ready to assert my independence. I’m sorry, California. I made a mistake.

In writing this post, I took some time to revisit some of the Prop 22 and Prop 8 history. On the one hand, these were uncomfortable episodes in my journey to understand my sexuality, but on the other hand, I think the dissonance caused by the Church’s involvement probably helped crack the closet door for me a little more with each event. Ultimately, the Church gains nothing of lasting value in these political forays into same-sex marriage. Gay marriage is advancing politically and most Americans of future generations will be embarrassed to look upon the resistance manifest in our day to the further advance of social justice. If marriage benefits individuals, families, and communities by promoting stability, commitment and sacrifice (as strong proponents of marriage reasonably claim), then it is an institution that LGBT persons need too. The pro-family Mormon Church should be a partner in advancing opportunities and freedoms for LGBT people. Yet sadly now it has dug in its heels, and like a stubborn person, it has chosen the fleeting pleasure of obstinacy over the long-term satisfaction of doing justice.

Notes:
1. Section 7.5 of the California constitution.
2. Estimates given by HRC here and here and a magazine article here.
3. HRC figure.
4. The rejection of same-sex marriages within Mormon theology is shared by other conservative religions including the Catholic Church. However, many Americans still feel uncomfortable with various unique aspects of Mormon doctrine, so the Church has seemingly determined that opposing same-sex marriage through a third party is an effective way to engage in the debate. Practically, funneling resources and volunteer efforts through a coalition allows the Church to collaborate with like-minded groups and yet maintain enough distance from the issue to blunt significant damage to the Church’s public image. 
5. See Wikipedia articles here and here.
6. D. Michael Quinn. 1997. The Mormon Hierarchy. Extensions of Power. Smith Research Associates.
7. Some Prop 22 history.
8. Link here.
9. See Sullivan, A. 1996. Virtually Normal. Vintage Books.
10. Support sought for Minnesota initiative.
11. “Marriage and Religious Freedom”
12. Elder Oaks, a Mormon apostle with a legal background, has in particular been in the forefront of making the LDS case that conservative religions are modern victims. See the following speeches at Chapman University and BYU Idaho by Elder Oaks and an article with some alternative perspectives.