The Church's Changing Position on the Legalization Same-Sex Marriage

[The Rambam]

At the J. Reuben Clark Law Society meetings at Stanford last weekend, Elder Lance Wickman, General Counsel to the Church, spoke. He said a number of things which were very interesting, but one stood out.

He decried the California Courts overturning the will of the people and declaring that gays have a Constitutional right to marry. He contrasted this with Washington State's process of debate and a vote in the legislature and a bill being signed by the Gov. allowing same-sex marriage. He emphasized that the bill contained important protections for religious entities.

The point was that the Church would much prefer that same-sex marriage be a statutory allowance than a constitutional right. And the Church would strongly prefer statutory protections rather than Court-determined constitutional limitations on their actions which would be vague, uncertain, and instantly malleable in a court ruling or to see Constitutions re-written to allow and protect same-sex marriage.

The Church knows the tide is against them on this one and they will start actively "not opposing" same sex marriage bills that give them the statutory protections they seek because this route is far more preferable than the Constitutional-right rubric.

Watch same-sex marriage sweep across the land in the next decade in the form of state legislation "not opposed" by churches--all in an effort to preempt Constitutional analyses done by judges and/or constitutional amendments imposed in referendums.

[Jeff Lebowski]

Very interesting.

On a somewhat related note, Ruth Bader Ginsberg made the following statement recently:

Supreme Court Justice Ruth Bader Ginsburg suggested Friday that her predecessors on the high court mistimed the milestone 1973 Roe v. Wade case that legalized abortion nationwide.

"It's not that the judgment was wrong, but it moved too far too fast," Ginsburg told a symposium at Columbia Law School marking the 40th anniversary of her joining the faculty as its first tenure-track female professor.

At the time of Roe v. Wade, abortion was legal on request in four states, allowed under limited circumstances in about 16 others, and outlawed under nearly all circumstances in the other states, including Texas – where the Roe case originated.

Alluding to the persisting bitter debate over abortion, Ginsburg said the justices of that era could have delayed hearing any case like Roe while the state-by-state process evolved. Alternatively, she said, they could have struck down just the Texas law, which allowed abortions only to save a mother's life, without declaring a right to privacy that legalized the procedure nationwide.

"The court made a decision that made every abortion law in the country invalid, even the most liberal," Ginsburg said. "We'll never know whether I'm right or wrong ... things might have turned out differently if the court had been more restrained."

A similar dynamic is now unfolding in regard to same-sex marriage, which is legal in six states, could soon be legal in a few more, but remains outlawed in most states. Legal advocates on both sides of the issue wonder if the Supreme Court will want to have a say on the matter relatively soon, or let the state-by-state process evolve further. Ginsburg did not comment on that issue.

http://www.huffingtonpost.com/2012/0...n_1269399.html

[DU Ute]

That makes a lot of sense. Were you at the event, Rambam? Or do you have another source you can link to?

I've seen Ginsberg express these sentiments before. Abortion certainly wouldn't be such a hot button issue if it had come about through the democratic process.

[NorthwestUteFan]

The church has been silent as far as I can tell over the gay marriage law here in Washington. However there are rumors they will strongly support the referendum which seeks to overturn the law. It will be interesting.

[smokymountainrain]

There are probably 10,000 registered CBers, so you can certainly prove this with one data point, right? My guess is that in general they wouldn't hold Rubio's current "faith status" against him that much because

1. He isn't holding himself as a faithful Mormon and then acting otherwise

2. He isn't actively being antagonistic to the church or its beliefs.

Wrong thread.

[Jacob]

At the J. Reuben Clark Law Society meetings at Stanford last weekend, Elder Lance Wickman, General Counsel to the Church, spoke. He said a number of things which were very interesting, but one stood out.

He decried the California Courts overturning the will of the people and declaring that gays have a Constitutional right to marry. He contrasted this with Washington State's process of debate and a vote in the legislature and a bill being signed by the Gov. allowing same-sex marriage. He emphasized that the bill contained important protections for religious entities.

The point was that the Church would much prefer that same-sex marriage be a statutory allowance than a constitutional right. And the Church would strongly prefer statutory protections rather than Court-determined constitutional limitations on their actions which would be vague, uncertain, and instantly malleable in a court ruling or to see Constitutions re-written to allow and protect same-sex marriage.

The Church knows the tide is against them on this one and they will start actively "not opposing" same sex marriage bills that give them the statutory protections they seek because this route is far more preferable than the Constitutional-right rubric.

Watch same-sex marriage sweep across the land in the next decade in the form of state legislation "not opposed" by churches--all in an effort to preempt Constitutional analyses done by judges and/or constitutional amendments imposed in referendums.

I obviously wasn't there, so I can't say. But is it possible Wickman was making a legal point rather than stating the position of the church, since he was talking to a bunch of lawyers.
To put it another way: what the courts are doing is extra-judicial and unconstitutional. They are creating law. This is a bad thing for society, the people within it--including the church. The church doesn't like it and the (Mormon) people don't like it. When the people use the political process to pass their preferred laws under the rule of law, the LDS legal community can't complain as much. We can only attempt to exert our political influence as individuals.

IOW, what you say here, does not constitute a change in teh churches perspective at all:

The point was that the Church would much prefer that same-sex marriage be a statutory allowance than a constitutional right. And the Church would strongly prefer statutory protections rather than Court-determined constitutional limitations on their actions which would be vague, uncertain, and instantly malleable in a court ruling or to see Constitutions re-written to allow and protect same-sex marriage.

And is there reason to believe or did Wickman say that what you claim? That the

Church...will start actively "not opposing" same sex marriage bills that give them the statutory protections they seek

Whatever you mean by "actively not opposing."

[DU Ute]

Here we go again

[SoCalCoug]

The point was that the Church would much prefer that same-sex marriage be a statutory allowance than a constitutional right. And the Church would strongly prefer statutory protections rather than Court-determined constitutional limitations on their actions which would be vague, uncertain, and instantly malleable in a court ruling or to see Constitutions re-written to allow and protect same-sex marriage.

The Church knows the tide is against them on this one and they will start actively "not opposing" same sex marriage bills that give them the statutory protections they seek because this route is far more preferable than the Constitutional-right rubric.

Watch same-sex marriage sweep across the land in the next decade in the form of state legislation "not opposed" by churches--all in an effort to preempt Constitutional analyses done by judges and/or constitutional amendments imposed in referendums.

Is it ironic, then, that Prop 8, actively supported by the Church, was a change to the California constitution done by referendum?

Lost in the legal maneuvering is the fact that the Governator twice vetoed legislative bills which would have allowed same-sex marriage in California, while the court stuff was going on, specifically citing the court stuff when he vetoed them. The referendum Prop 8 made the legislative changes moot.

Surely, the Church would support the legislative changes in California, which were negated by the constitutional amendment imposed in referendum?

[The Rambam]

That makes a lot of sense. Were you at the event, Rambam? Or do you have another source you can link to?

I was at the Conference along with about 450 others. No recording of Elder Wickman's talk was allowed (I was told by another attorney who works for the Church).

[PaloAltoCougar]

It saddens me that I was in the same room with The RamBam (and I concur with his summary of Elder Wickman's address) and we didn't meet up.

[The Rambam]

I obviously wasn't there, so I can't say. But is it possible Wickman was making a legal point rather than stating the position of the church, since he was talking to a bunch of lawyers.

At one point he said: "And here I am speaking officially for the Church" and followed that statement by saying that the answer was to look to and work under the Constitution in dealing with these matters. Kind of vague.

I think his meaning was that the Church officially believes in the Constitution and will work within the legal and legislative process it sets forth to advance their position. In context, I took this to mean that the Church views constitutional protections sacred and will fight against gay rights being viewed as constitutional rights, but in the end will accept the results of the decision-making processes set up by the Constitution.

Anytime a GA says "And here I speak officially for the Church" you sit up and listen closely.

To put it another way: what the courts are doing is extra-judicial and unconstitutional. They are creating law. This is a bad thing for society, the people within it--including the church. The church doesn't like it and the (Mormon) people don't like it. When the people use the political process to pass their preferred laws under the rule of law, the LDS legal community can't complain as much. We can only attempt to exert our political influence as individuals.

I understand your point and disagree with it. The Courts are applying "equal protection" to a minority group being discriminated against. That is not creating law IMHO. That is properly applying constitutional protections to a group in need of them. Is the result "new"? Of course. Just like interracial marriage and mixed-race schools were in the 1950s and 60s.

I agree that things would be less contentious and more accepted if the changes come by way of political processes. But you and I aren't the ones in love with our domestic partner, desperately desirous of marrying them, being told to wait until society is good and ready to extent to them equal rights. If those darn gay minorities in Utah and Oklahoma would just be more patient their day will come through a political process like it has in Washington!! Maybe it will take a generation or two. If I am the Judge with the case before me, I grant them equal protection.

Yes, a political process would be better. But it is morally wrong to make them wait until their equal rights are popular enough. Equal treatment is their constitutional right, right now. If the bigots won't allow equal rights, the Courts should step in.

And is there reason to believe or did Wickman say that what you claim? Whatever you mean by "actively not opposing."

He didn't use that phrase, but another key person did. The consistent message was that the outcome of the battle is clear and we would rather have the statutory permission rubric with religious protections codified than the constitutional rights framework.

[The Rambam]

It saddens me that I was in the same room with The RamBam (and I concur with his summary of Elder Wickman's address) and we didn't meet up.

I don't know why I didn't think to look you up. I am very sorry.

[The Rambam]

One other thought:

Elder Wickman talked about the clashing of the First Am and the Fourteenth Am. The Church is holding up the First, claiming its protections asserting the rights it covers. Homosexuals are holding up the Fourteenth, claiming its protections and asserting the rights it covers.

A very good law review article needs to be written discussing this conflict.

[Jeff Lebowski]

I understand your point and disagree with it. The Courts are applying "equal protection" to a minority group being discriminated against. That is not creating law IMHO. That is properly applying constitutional protections to a group in need of them. Is the result "new"? Of course. Just like interracial marriage and mixed-race schools were in the 1950s and 60s.

I agree that things would be less contentious and more accepted if the changes come by way of political processes. But you and I aren't the ones in love with our domestic partner, desperately desirous of marrying them, being told to wait until society is good and ready to extent to them equal rights. If those darn gay minorities in Utah and Oklahoma would just be more patient their day will come through a political process like it has in Washington!! Maybe it will take a generation or two. If I am the Judge with the case before me, I grant them equal protection.

Yes, a political process would be better. But it is morally wrong to make them wait until their equal rights are popular enough. Equal treatment is their constitutional right, right now. If the bigots won't allow equal rights, the Courts should step in.

[Jacob]

I understand your point and disagree with it. The Courts are applying "equal protection" to a minority group being discriminated against. That is not creating law IMHO. That is properly applying constitutional protections to a group in need of them. Is the result "new"? Of course. Just like interracial marriage and mixed-race schools were in the 1950s and 60s.

I agree that things would be less contentious and more accepted if the changes come by way of political processes. But you and I aren't the ones in love with our domestic partner, desperately desirous of marrying them, being told to wait until society is good and ready to extent to them equal rights. If those darn gay minorities in Utah and Oklahoma would just be more patient their day will come through a political process like it has in Washington!! Maybe it will take a generation or two. If I am the Judge with the case before me, I grant them equal protection.


Yes, a political process would be better. But it is morally wrong to make them wait until their equal rights are popular enough. Equal treatment is their constitutional right, right now. If the bigots won't allow equal rights, the Courts should step in.

Thanks for the clarification. That makes perfect sense.
But as to the portion of your post quoted above, I don't mean to debate this issue. That has been done elsewhere. I think I was merely trying to describe the position of the LDS legal community, which I think agrees with me. By LDS legal community, I mean the church's lawyers and leaders, most of the professors at BYU, and, if I may be so bold, most active LDS lawyers.

Under my interpretation, what you say is the church's evolving position is not evolving at all, it is consistent with law as understood by the LDS legal community over the past decade (at least). The change might be to de-emphasize official church opposition to legislative efforts, as you mentioned. But I think there is not a lot of evidence of that yet. The church is still actively opposing legislative efforts to change marriage.