NOT The End of the World

Last night I dreamed a dream. I sat in an LDS cultural hall - that's the basketball/banquet court behind the chapel. I was with some familiar, church friends not just from my present ward. It was some sort of symposium on the new history presented by the church (for examples, see polygamy and race and the priesthood in Gospel Topics). After a speech, there was an open mike for people to ask questions or make comments. There were quite a few people lined up. They were friendly enough, but not members or friends of the church. They spoke as outsiders. I commented to my friends that someone should speak up for the church. I got up and got in line. I came to the mike. I was alone . . . .

No recollection remains of what I said. So, what the heck, I'll say it here (not in an official capacity for the church!)

This has been an amazing and challenging time with the federal courts of Utah on matters relating to sacred principles of marriage in which the church has played a substantial historical role. One recent ruling decriminalized polygamy as practiced by certain groups based on Mormon tradition (not the church of Jesus Christ of Latter-day Saints, more like reality TV). The other ruling, of just yesterday, struck down Utah's laws and a recent voter-approved state constitutional amendment as violating principles of freedom and liberty for same-sex marriage partners protected by the U.S. Constitution.

General Authorities don't like to be quoted in their sometimes impromptu speaking events at regional or stake conferences. They represent the Lord and the Church, and they are respectful of the gravity of what may be wrongly interpreted or misunderstood out of context. So, I won't mention any names. But my views on same-sex marriage began to "evolve" a few years ago on that Saturday in the priesthood-leadership session and that evening at the adult session of stake conference.

In the priesthood session, the Apostle asked a series of gospel questions with audience participation for us to shout out a scriptural reference as to how we would answer the question. Somehow I raised my hand and was called on for a question on same-sex marriage. I said I would refer the person with the question to "the Proclamation on the Family because I consider that to be the same as scripture." With absolutely no recognition on his face to confirm or correct my response, the Apostle moved on to another topic. I didn't know how to interpret that. I still don't. That evening speaking to the adults, he spoke on same-sex marriage again. He said that it all depended on how we frame the issue. "If we frame it as a civil rights issue, we lose. If we frame it as a religious issue, we have a chance."

Yeah. I could see that. And I realized right then and there that there were two things at play here. I have a copy of the Family Proclamation framed on our entryway hall. You can find one in many LDS homes. My sister gave us ours in a nice frame with some dried flowers under the glass. I also have on my desks at home and at work a copy of the US Constitution. I believe in both. I just think they are completely separate things.

And the federal courts. ¡Ay, ay, ay! I think both decisions are politically motivated. I happen to be a judicial realist that a judge is not a blank slate to apply the law with those blindfolds and measure of justice, but decides what the decision should be then finds a legal basis to support it. I'm not going into a full-scale legal analysis, let me just make a couple of points and move on in my ongoing effort to figure things out.

The polygamy case did not declare any new fundamental rights. It only decriminalized Utah's statutes prohibiting plural marriage that were required by Congress as a condition of statehood. Oddly, it said that a marriage is not established by any religious ceremony, but at the moment a state marriage license is issued. So if one enters into only a "spiritual" arrangement, without a license, there is no "marriage" to punish as bigamy, and the state should not be punishing "spiritual" unions. The LDS Church is not going to like that ruling. Neither is the County Clerk who issued our license some 34 years ago as she told the group of young couples in the basement of the Utah County Courthouse, "Now, this doesn't mean you're married, so, you know," etc. Utah County.

The Judge in the polygamy case is a conservative W. Bush appointee who relied heavily on Lawrence v. Texas in the US Supreme Court that decriminalized gay sex striking down Texas anti-sodomy laws. I really got the idea that the Judge was saying, "Hey, if you're going to give us gay sex, I guess I'm going to give you polygamy," thus fulfilling  the right-wing, slippery-slope arguments. As I've said on the Mormon Dems blog, I don't think polygamy will end up legally protected like same-sex marriage as there is no state or state court that will legalize it. It is disfavored on both the right and the left (and the center).

The Judge in the same-sex marriage case is a recent Obama appointee. Interestingly, he was careful not to declare gays a protected class with any laws affecting their interests to undergo a heightened scrutiny standard. He simply reasoned, based on the recent Supreme Court rulings on California Prop 8, that the state law and constitution could not withstand a rational basis standard. Yes, it was pay-back for Prop 8. He also played Justice Scalia a bit, citing his dissent as to what the eventual outcome of the majority's decision in Winder would be. Yup, constitutionally protected same-sex marriage. If you don't think he was sticking it to conservatives, try this little gem:

The State’s prohibition of the Plaintiffs’ right to choose a same-sex marriage partner renders their fundamental right to marry as meaningless as if the State recognized the Plaintiffs’ right to bear arms but not their right to buy bullets.

Uh, boy . . . !

So here we are. I have no idea how this is going and it will be going in the courts for a while. I do have two predictions. In the eventual long (or short) run, same-sex marriage will be constitutionally protected and polygamy won't.

And when we end up with a Supreme Court decision, let's keep this scripture in mind:

Inasmuch as laws have been enacted . . . which laws have been pronounced constitutional by the court of last resort, I hereby declare my intention to submit to those laws, and to use my influence with the members of the Church over which I preside to have them do likewise. D&C Official Declaration 1.

This doesn't mean we'll be doing any religious or temple same-sex marriages. The First Amendment still lives.