Boy Scouts reviewing Ban on Gays ...

[calicoug]

Because I've followed the case pretty closely. The state doesn't even really have an argument.

Huh. That is sort of what you said above. I was hoping for a bit more... Detail.

[UVACoug]

Huh. That is sort of what you said above. I was hoping for a bit more... Detail.

Sorry ... I amended my previous post.

[calicoug]

Because I've followed the case pretty closely. The state doesn't even really have an argument.

Lawrence v. Texas says that consenting adults have a constitutional right to privacy in their sexual relationships. On these grounds, the court struck down sodomy laws. It is clear that this also applies to laws against adultery. I don't see how it wouldn't also apply to having multiple partners.

There is also an equal protection argument, which isn't as strong in my opinion. Thousands of people sleep around with multiple sexual partners and the government wouldn't dare prosecute them. Utah's antibigamous cohabitation law is clearly targeted at people with multiple sexual partners for religious reasons. There is no rational basis for targeting religious bigamists as opposed to targeting secular bigamists. Remember, this case is not about official marriage ... it is about cohabitation.

The plaintiffs have also brought a free exercise claim, but I don't think the Court will even get there. It would be a difficult issue in light of Reynolds v. U.S. (the Supreme Court decision from the 1800s that said there is no free exercise right to practice polygamy). It is an old case, and the Supreme Court's free exercise jurisprudence has changed quite a bit since then ... but the Court has consistently been careful to distinguish Reynolds, rather than suggest it is no longer good law. I don't see the Court departing from Reynolds. It probably wont even reach the free exercise argument.

The State knows how bad their case is and argued vigorously that there was no standing to bring the suit. When they lost on standing, they got the Utah County Attorney to promise not to prosecute any polygamists for cohabitating (unless there was child sex abuse or fraud involved), and tried to argue that that mooted the case. The court ruled against the state on that too. When they got to the merits, the State didn't have much if a leg to stand on. They threw out stories of child abuse and fraud, but didn't have any actual evidence to support the claim that the state had a rational basis for banning cohabitation for religious bigamists but not secular bigamists. That is because there is none. There is no evidence that religious bigamy is an independent cause of child abuse and fraud.

Here is the newspaper account of that hearing:

http://www.sltrib.com/sltrib/news/55...amous.html.csp

I actually disagree with the court on its standing ruling. I don't think the threat of prosecution was ever real. The prosecutors in Utah were stupid in the amount of bluster they gave to the press, but they were never going to charge the Browns. I would not be surprised if the Tenth Circuit reversed what will likely be a ruling that the law is unconstitutional on the grounds that there was no standing. That is how they have treated polygamy cases in the past. The standing issue is closer in this case than the other polygamy cases though, so they could affirm.

Thanks. I thought Reynolds wasn't really followed anymore. It has been a while since I dug into these cases, but my recollection was that Reynolds distinguished between state regulation of action versus belief and cases today focus on whether the state has a substantial interest in regulations impacting free exercise and the alternatives available to the state. Is there a line of cases still following Reynolds?

[UVACoug]

Thanks. I thought Reynolds wasn't really followed anymore. It has been a while since I dug into these cases, but my recollection was that Reynolds distinguished between state regulation of action versus belief and cases today focus on whether the state has a substantial interest in regulations impacting free exercise and the alternatives available to the state. Is there a line of cases still following Reynolds?

The supreme courts interpretation of the free exercise clause has changed over time, sometimes quite dramatically. In Reynolds, the Court said that the free exercise protects religious belief, but not religious practice. It allowed the government to make pretty much any law it wanted to, even a law that was targeted at religious practice. Many scholars consider Reynolds to be a bad interpretation of the First Amendment motivated by prejudice against Mormons.

In the early/mid 20th century, the Court's interpretation of the free exercise clause shifted to what you are describing. The Court implemented several "tests" to see if the government had a legitimate, non-pretextual reason for implementing a law that interfered with religious practice and, in some circumstances, recognized exemptions to certain laws based on religious practice. Despite this shift, Reynolds was never explicitly overruled and it was even cited with approval in a few cases.

In the 1990s, the law shifted again. The current law on free exercise is that the government can make any law it wants, regardless of how much it interferes with religion ... as long as the purpose of the law (express or implied) is not to interfere with religious practice and the law is applied generally to the population as a whole. A law that has a pre-textual purpose that appears neutral, but that is actually intended to interfere with religion, is a violation of the free exercise clause. Religious exemptions to generally applicable laws are not guaranteed by the first amendment.

The case that shifted the interpretation of the free exercise clause back towards Reynolds was written by Justice Scalia, who cited Reynolds as if it were still good law (even though most scholars considered it bad law). But, apparently Reynolds is still the law of the land, even though it is likely limited only to laws that prohibit polygamy. This is a little weird because the law that was upheld in Reynolds was clearly intended to target a particular religion and a particular religious practice. Reynolds would probably have come out differently under the current standard. It will be interesting to see whether the Supreme Court revisits Reynolds if (or when) one of these polygamy cases comes before them, or if they will ignore the free exercise questions and focus on due process and equal protection.

[calicoug]

The supreme courts interpretation of the free exercise clause has changed over time, sometimes quite dramatically. In Reynolds, the Court said that the free exercise protects religious belief, but not religious practice. It allowed the government to make pretty much any law it wanted to, even a law that was targeted at religious practice. Many scholars consider Reynolds to be a bad interpretation of the First Amendment motivated by prejudice against Mormons.

In the early/mid 20th century, the Court's interpretation of the free exercise clause shifted to what you are describing. The Court implemented several "tests" to see if the government had a legitimate, non-pretextual reason for implementing a law that interfered with religious practice and, in some circumstances, recognized exemptions to certain laws based on religious practice. Despite this shift, Reynolds was never explicitly overruled and it was even cited with approval in a few cases.

In the 1990s, the law shifted again. The current law on free exercise is that the government can make any law it wants, regardless of how much it interferes with religion ... as long as the purpose of the law (express or implied) is not to interfere with religious practice and the law is applied generally to the population as a whole. A law that has a pre-textual purpose that appears neutral, but that is actually intended to interfere with religion, is a violation of the free exercise clause. Religious exemptions to generally applicable laws are not guaranteed by the first amendment.

The case that shifted the interpretation of the free exercise clause back towards Reynolds was written by Justice Scalia, who cited Reynolds as if it were still good law (even though most scholars considered it bad law). But, apparently Reynolds is still the law of the land, even though it is likely limited only to laws that prohibit polygamy. This is a little weird because the law that was upheld in Reynolds was clearly intended to target a particular religion and a particular religious practice. Reynolds would probably have come out differently under the current standard. It will be interesting to see whether the Supreme Court revisits Reynolds if (or when) one of these polygamy cases comes before them, or if they will ignore the free exercise questions and focus on due process and equal protection.

Thanks.

Does Utah have a RFRA statute?

I remember Scalia's opinion in Smith, but I thought subsequent case law had suggested the standards in Smith may actually no longer be good law (I think it was Haileah which reintroduced the concepts of neutral and generally applicable and several subsequent cases have incorporated those concepts with success).

This sounds like a fascinating case. I'll have to dig into it a bit more. It could even be more fascinating given that this might be a type of "hybrid" case which involves more than just the Free Exercise Clause (particularly after Lawrence). If so, I would guess you are correct that the State doesn't have much of a fighting chance in this one.

Do you have a link to the case briefs? Is this in front of the 10th Circuit already or is it in the State Courts?

Thanks

[UVACoug]

Thanks.

Does Utah have a RFRA statute?

I remember Scalia's opinion in Smith, but I thought subsequent case law had suggested the standards in Smith may actually no longer be good law (I think it was Haileah which reintroduced the concepts of neutral and generally applicable and several subsequent cases have incorporated those concepts with success).

This sounds like a fascinating case. I'll have to dig into it a bit more. It could even be more fascinating given that this might be a type of "hybrid" case which involves more than just the Free Exercise Clause (particularly after Lawrence). If so, I would guess you are correct that the State doesn't have much of a fighting chance in this one.

Do you have a link to the case briefs? Is this in front of the 10th Circuit already or is it in the State Courts?

Thanks

I believe Smith introduced the neutral and generally applicable standard, and Hialeah introduced the principle that a neutral law could not be pretextual. I could be wrong on Hialeah though. I am fairly confident on Smith.

I don't have a good link to all the briefs. A lot of them are on Jonathan Turley's blog. He is a George Washington Law Professor who is representing the polygamists. Here is a link to the latest brief he filed:

http://jonathanturley.org/2013/01/18...-final-ruling/

I believe there are more briefs on that blog, but it is kind of difficult to search. The case is still in the district court in front of Judge Waddoups.

[calicoug]

I believe Smith introduced the neutral and generally applicable standard, and Hialeah introduced the principle that a neutral law could not be pretextual. I could be wrong on Hialeah though. I am fairly confident on Smith.

I don't have a good link to all the briefs. A lot of them are on Jonathan Turley's blog. He is a George Washington Law Professor who is representing the polygamists. Here is a link to the latest brief he filed:

http://jonathanturley.org/2013/01/18...-final-ruling/

I believe there are more briefs on that blog, but it is kind of difficult to search. The case is still in the district court in front of Judge Waddoups.

Interesting Turley is litigating this. He gets involved in some bizarre but fascinating cases.

Thanks for the link.

[Jeff Lebowski]

[Uncle Ted]

Results of Utah portion of BSA poll have been released to the public:

http://www.deseretnews.com/article/7...cy-change.html

83% of Utah BSA leaders oppose a change in the policy.
70% say that if the policy is changed, they will either quit scouting, or reduce involvement.

Incredible. Shame on all of them.

Nationwide, the BSA’s own official “Voice of the Scout” survey shows respondents support the current policy by supermajority of a 61 percent to 34 percent margin. Additionally:


72 percent of chartered organizations support the current policy
64 percent of council and district volunteers support the current policy
62 percent of unit leaders support the current policy
61 percent of Boy Scout parents support the current policy
50 percent of Cub Scout parents support the current policy

http://www.onmyhonor.net/2013/04/26/...on-resolution/


I wonder what the numbers would be like if they removed the LDS responses.

[Moliere]

http://www.onmyhonor.net/2013/04/26/...on-resolution/


I wonder what the numbers would be like if they removed the LDS responses.

I also wonder what the responses would be after the tepid endorsement by the church of the proposed policy.

[Uncle Ted]

I also wonder what the responses would be after the tepid endorsement by the church of the proposed policy.

I am guessing about the same given (1) no one seems to follow these announcements (it is not like it was read over the pulpit) and (2) if they did read it they would declare it is a "tolerance trap".

[UVACoug]

Interesting Turley is litigating this. He gets involved in some bizarre but fascinating cases.

Thanks for the link.

Yeah. It seems like he has made a name for himself taking winnable cases that no one else wants to touch.

[Eddie]

I reread the LDS press release this morning and was just wondering why they language was so vague. It wasn't an outright endorsement of the proposed policy, but they certainly didn't say they were against it. Ultimately I think the church is doing something they are keen to do in most situations, which is to not look like they were wrong. If the proposal passes they can point to the fact they didn't go against it and in some part showed support. If it doesn't pass then they can take a narrow view on the press release and say they didn't support the position. They are pretty much setup to come away as the "correct" party on this one.

In my own little head, I like to think that the church played a role in the crafting of the current proposal. I'm sure they were contacted and asked if they'd drop scouting if it passes and I'm sure they said they wouldn't drop it. You don't just change something without the input of the majority of your stakeholders. I like to think our church was the one pushing for more inclusion. Whether that is correct or not, I don't know but I hope I'm right.

I can already guess the responses to this on Sunday. Most people were of the opinion that the church is totally against any proposal to allow gay scouts and/or leaders and they'd drop scouting if it was allowed. Now I'm sure those people will change their opinion and say they knew all along this proposal was more in line with current ("current" is my word as they'll probably use "eternal" or "unchanging") church policy and compassion.

Like you, I'm sure that the church was consulted.

My overall perspective was that the church didn't as much endorse the proposal as they appreciated that BSA was considerate in their decision-making. And they probably decided that they aren't necessarily for or against it. I'm sure they saw this as a battle that is not winnable long term - and I hope that they also determined that they want all of the YM involved regardless of their sexual orientation. I'm sure they also appreciated the clause in the BSA proposal that essentially says that no boys - gay or straight - should be participating in sexual behavior as part of scouting.

[Moliere]

FYI, here is the proposal for those that haven't read it. I like it very much:

Youth membership in the Boy Scouts of America is open to all youth who meet the specific membership requirements to join the Cub Scout, Boy Scout, Varsity Scout, Sea Scout, and Venturing programs. Membership in any program of the Boy Scouts of America requires the youth member to (a) subscribe to and abide by the values expressed in the Scout Oath and Scout Law, (b) subscribe to and abide by the precepts of the Declaration of Religious Principle (duty to God), and (c) demonstrate behavior that exemplifies the highest level of good conduct and respect for others and is consistent at all times with the values expressed in the Scout Oath and Scout Law. No youth may be denied membership in the Boy Scouts of America on the basis of sexual orientation or preference alone.

http://www.scouting.org/sitecore/con...esolution.aspx

[Jeff Lebowski]

FYI, here is the proposal for those that haven't read it. I like it very much:



http://www.scouting.org/sitecore/con...esolution.aspx

That is great. It will be interesting to see how the voting goes.