A Word on Man’s Law vis-a-vis God’s Law, and Gay Marriage
By Ken K. Gourdin
I recently participated in the 1,987,654,321st thread on gay marriage at Mormon Dialogue and Discussion. When another poster said that the leaders of the Church of Jesus Christ of Latter-day Saints—devout members regard the Church’s President, Thomas S. Monson, as well as the Twelve Apostles collectively, as prophets, seers, and revelators—had “yet to receive a revelation” on the “important issue” of gay marriage, I wrote, “Sure, there has [been a revelation on gay marriage]. You may not accept it as such, and others may not accept it as such, but that doesn’t negate its existence. And, while others may disagree on this point, canonization is not necessarily a sin qua non of revelation. https://www.lds.org/topics/family-proclamation?lang=eng.” The link (this and all other links herein last accessed January 3, 2017) is to the 1995 declaration, The Family: A Proclamation to the World, wherein the Church’s First Presidency and Quorum of the Twelve Apostles reiterate the Church’s doctrines on chastity and marriage that sex outside of marriage is wrong, and that only marriage between a man and a woman is ordained of God.
One respondent stated that The Family: A Proclamation to the World has never been declared to be a revelation. In response, I asked him, “Do you know how many proclamations have appeared over the signatures of each member of the First Presidency and/or of the Quorum of the Twelve in the entire history of the Church of Jesus Christ of Latter-day Saints?” He never responded. The Encyclopedia of Mormonism, which was compiled before the 1995 proclamation referenced above, lists only four such documents.
The rarity of the issuance of such documents places the Proclamation in rare company, and, in my mind, greatly dilutes the non-revelation and non-canonization arguments as weapons for attempting to diminish the Proclamation’s significance. For information regarding the issuance of documents to the general public over the signatures of the Twelve Apostles and/or over those of the First Presidency and the Twelve between 1830 and 1980, See the following address:
Another poster said he does not see God’s hand in the recent policy change instituted by the Church of Jesus Christ of Latter-day Saints that children living in same-sex married households must wait until they are eighteen so that they, themselves, may request baptism, rather than being baptized by their parents at age eight, which is the usual practice. He blamed “Kirtland McConkie” for that change. I responded:
I‘m not sure what you’re referring to when you say “Kirtland McConkie.” If you’re referring to the law firm which represents the Church of Jesus Christ of Latter-day Saints in various matters, that’s Kirton McConkie. With respect to the controversy over recent additions to the Church Handbook of Instructions, issuance of The Family: A Proclamation to the World predates that controversy by about 20 years. You’re absolutely free to not see God’s hand in the issuance of the Proclamation, and/or in the recent Handbook changes. We’ll simply have to agree to disagree. I wish you well.
I did not see his response, but he trotted out the lie (I’d like to be more charitable, but I don’t know what else to call it) that the Church of Jesus Christ is “denying baptism” to children of gay couples, in contravention of Jesus’s dictate to “suffer the little children to come unto me, and forbid them not. For of such is the kingdom of heaven” (Matthew 19:14). Apparently, he thinks it is more charitable to foment confusion in children’s minds by allowing them to be baptized into a church which teaches one thing, but whose very household exists in contravention of church teaching. (I have yet to hear of a single gay, married couple in the Church of Jesus Christ who want their minor children to be baptized into a church that teaches—at least by implication—that gay marriage is sinful and that only marriage between a man and a woman is ordained of God.)
Later, I posted:
Thanks to various court decisions handed down in recent decades (including Obergefell v. Hodges [the decision legalizing gay marriage nationwide]) “Free exercise of religion” is quickly coming to mean, “Sure, you are absolutely ‘free’ to ‘exercise’ your religion … within the walls of your holy place on your holy day,” when that is not at all, I don’t believe, what the Founders intended (notwithstanding the Obergefell majority’s magnanimous declaration that religious believers may continue to “believe” and to “teach” as they wish with respect to gay intercourse and gay marriage). One of the reasons why the Founders valued religion is because they saw moral virtue, as inculcated by religion, as inextricably bound up in civic virtue. In any event, whether or not one sees moral virtue as a sin qua non for civic virtue, and whether a society which devalues religion necessarily is morally impoverished, such a society is, indeed, at the very least culturally impoverished, and everyone, gay or straight, religiously devout, religiously indifferent, or religiously antipathetic, is the poorer for it.
Later, another poster wrote (partly in ALLCAPS for my benefit, since, with my limited intellect and attention span, I was sure to miss it or to not understand it if he hadn’t), “Let’s be clear on the Obergefell v. Hodges ruling. EVERY SINGLE federal and district court ruled in favor of the constitutionally protected right for gay couples to marry.” I responded, “Huh. News to me. If that’s the case, one wonders how Obergefell v. Hodges got to the United States Supreme Court then, because if lower courts are unanimous, the Supreme Court rarely (if ever) feels the need to intervene in the matter under consideration.”
He wrote, “This even includes LDS judges ruling in favor of gay marriage.” I responded, “If that’s the case, while I’m more than willing to defer to your apparently superior knowledge as to judges religious leanings, I do wonder how you know that.” He wrote, “I remind you that even the judicial courts in Utah ruled in favor of gay couples right to marry.” I responded, “One of them did, but it was a federal court, not a state one. Prior to Obergefell v. Hodges, the question of whether to allow gay marriage in any given jurisdiction was a state matter rather than a federal one.” In response to his naked, unsupported, ipse dixit assertion that the ruling isn’t an attack on religion, I wrote, “I say it is, you say it isn’t. Agree to disagree, I suppose.” He wrote, “I might also add that the vast majority of the country agrees with this ruling, even other Christians,” and I responded, “As President David O. McKay is reputed to have once said, Right is right even if nobody listens to it, believes it, or does it, and wrong is wrong even if everybody listens to it, believes it, or does it.”
He wrote, “You are right about one thing. If it was up to churches to rule on gay marriage, then it would probably fail. But in this country, it is the Constitution that guarantees rights, not churches.” I responded:
As though churches and their adherents don’t have any rights under the Constitution. Sadly, you’re correct: given the trajectory of courts’ treatment of the First Amendment’s “Free” Exercise clause, such “free” exercise is quickly coming to mean “The right to ‘exercise’ one’s religion ‘freely’ … within the walls one’s holy place on one’s holy day.”
I might also have pointed out, strictly speaking, that neither governments nor constitutions nor judges nor courts guarantee anyone’s rights. Constitutions simply limit what government can do in relation to curtailing or limiting one’s inherent, inalienable rights.
He wrote, “It is every judges sworn duty to uphold those rights no matter what their personal religious views are. They have done just that. I personally would not want to live in a country where religious leaders make the laws. I wish more Americans felt that way.” I might have asked whether he feels that this principle should be used to silence people whose religious convictions inform their participation in government (through e.g., voting). I’m aware of at least one person (though I only know him by an anonymous screen name) who believes exactly that. An excerpt of my response to him can be found here. See the following address:
Leaving that aside, I did respond in this discussion by writing, “Reasonable minds can hold perfectly principled, well-reasoned disagreements about rights. Those who have penned and joined the minority opinions opposing the majority opinions you so extol have done exactly that. I hope they continue to do so.”
Next, my interlocutor asked me if I am from New Zealand and proceeded to give me a lecture on the structure and function of the federal court system. I responded, “Condescend much? Usually, those who are secure in their positions and opinions don’t feel the need to condescend to their interlocutors as much as you do here. So, why the dripping condescension?” Hereafter, for the sake of clarity, I will quote excerpts of his response to me, along with my reply to him.
He wrote, “Virtually all of the 13 appellate courts also all ruled in favor of gay marriage,” and also, “You are right. The Supreme Court did not have to rule on this issue when all of the other appellate courts had ruled in favor of gay marriage.” I responded, “You’re equivocating. Which is it? All, or virtually all? (Hint: If the unanimity you claim existed among the Circuit Courts of Appeals actually had existed, there would have been no reason for the United States Supreme Court to take up the case.).”
He wrote, “In the future, someone can not challenge this decision on a appellate level and win. They have to challenge it in the Supreme Court and win. It makes it way more difficult to ever be challenged again.” (He thinks a future appeal would have to begin at the United States Supreme Court, and I’m the one who doesn’t know the system works? All I can say to that (with mouth completely agape) is, “Ooooooh-key Dokey!”) I responded:
You’re right to the extent that with the United States Supreme Court decision in Obergefell v. Hodges on the books, no trial or appellate court is likely to “get a wild hair” and issue a ruling or a decision which is inconsistent with it. However, there is a big, big difference between “unlikely” and “impossible.” After all, Obergefell v. Hodges wasn’t a 9-0 decision, or an 8-1 decision, or a 7-2 decision, or even a 6-3 decision: it was only a 5-4 decision, and such bare majorities are far from permanently secure. And it would appear (notwithstanding your own security in your own allegedly-vast knowledge of how the court system works … in fact, you’re so secure in that knowledge that, apparently, you simply cannot resist condescending to your interlocutors, who might, however unlikely the prospect may seem to you … actually know more about how that system works than you do) that your knowledge of how the court system works actually might be [Gasp!] lacking.
The United States Supreme Court does not simply take original jurisdiction over cases, even when it has decided cases on that subject previously. As much as gay marriage proponents might love to say, “We won in the Supreme Court in 2015, and that’s the end of the story, forever and ever, Amen,” the United States Supreme Court cannot simply say, “Yep, we’ve decided this issue before, so we’ll simply dispense with all of that nonsense in the trial and appellate courts below and decide it again.” Guess what? In the (admittedly unlikely) event that a trial court were to render a decision inconsistent with Obergefell v. Hodges, gay marriage proponents would still have to argue the issue in the trial court. Then, if the trial court ruled against them, they would still have to argue it in the appellate court. And if the appellate court ruled against them, they’d still have to argue it in the United States Supreme Court. Granted, with Obergefell v. Hodges in place, the odds might be long that arguments against it would prevail, but a declaration of, “Your Honors, we won in 2015” might well be met with a skeptical, “So? That was then, and this is now. You better have a better argument than that. The composition of the Court has changed, and if that’s all you’ve got, you’d better be ready for 2015’s bare minority to become today’s (albeit bare) majority.”
I hope that clarifies things for you. And I hope that you now realize that gay marriage was not just some wild judicial verdict by just 5 justices that sit on the Supreme Court. It is really hard to argue the rights of gay couples when every single court that heard a gay marriage case ruled in favor of gay marriage.
And I responded, “Your knowledge of history appears to be lacking. You might want to check your facts.”
He wrote, “THIS IS NOT A CASE OF JUDICIAL ACTIVISM. There is too much law supporting that decision and too many judges that also ruled in favor of gay marriage. And none that ruled against it.” I responded:
If the United States Circuit Courts of Appeals had been unanimous, as you claim, yet the United States Supreme Court had decided to hear Obergefell v. Hodges anyway, wouldn’t it be people on your side of the issue sputtering, “B… Bu… But, that’s judicial activism! All of the Circuit Courts are unanimous! Why does the Supreme Court even have to hear the case?!” You seem to want to have your cake and eat it, too. You appear to be just fine with judicial activism … as long as it’s not your ox being gored.
As for Judge Dale Kimball of the U.S. District Court for the District of Utah, his ruling did nothing to legalize gay marriage per se. Judge Robert Shelby’s ruling (and Judge Shelby, like Judge Kimball, serves on Utah’s federal district court … in an earlier post, you elevated Judge Kimball to the United States Court of Appeals for the Tenth Circuit) already did that. Rather, all Judge Kimball’s ruling did was simply decline to delay enforcement of Judge Shelby’s ruling pending appeal. You may disagree, but that isn’t the same thing as “ruling in favor of gay marriage”: it simply means [that] procedurally, the judge saw no reason to delay enforcement of Judge Shelby’s ruling.
I look forward to your (no doubt exceedingly condescending) reply.
Another poster said that there’s nothing in The Family: A Proclamation to the World that forbids same-sex relationships or that says God will never saction same-sex marriage. I responded:
What about other relationships that the Proclamation on the Family says nothing about? Does it not preclude the possibility that God can someday sanction them through special revelation? What about marriage between father and freely-consenting adult daughter or stepdaughter? Between uncle and freely-consenting adult niece? Between mother and freely-consenting adult son or stepson? Between aunt and freely-consenting adult nephew? I’ll hasten to add that if your immediate response is, “I’m talking about consenting adults who are not related by blood or marriage,” that’s fine, but I’m simply trying to see how far your logic extends. As long as we’re reading situations into the Proclamation that it does not, by its terms, address, what’s the limiting principle that might preclude any of the above? Is there one?
As an Eternal Bachelor, I’m not unsympathetic to the plight of gays and lesbians who may not find an eternal companion in this life. I recognize that what the Restored Gospel asks of them may be an exceedingly tough (perhaps a uniquely tough) row to hoe in mortality. If I thought that mortality was the final act (or the most important one) in the premortal/mortal/postmortal drama, I might feel exactly the way many of them do about the positions of the Church of Jesus Christ of Latter-day Saints with regard to chastity and marriage.
If someone says, “Heavenly Father, I won’t want to be straight in the next life, either,” I could say, “Heavenly Father, if finding an Eternal Companion entails attending one looooong Stake Singles Dance in the next life, count me out. Eternal ‘ministering angelhood’ is fine.” But whatever happens, however God, in His Infinite Wisdom, Love, Mercy, and Power, chooses to address our respective situations, if we continue faithful (as-yet unanswered questions notwithstanding) I don’t think He’ll have to tell any of us, “I know you were expecting something more, or better, or at least different, but, sorry. This is the best I could do. ”
It’s worth noting that one can recognize, appreciate and support moral virtue, civic virtue, religion, religious freedom, and the toleration of divergent religions as well as their individual contributions to society while simultaneously supporting both the rule of law, public accommodations laws limiting public, commercial discrimination based on protected classes, and the civil marriage rights of same-sex couples. Societies are strengthened and enriched when they recognize and appreciate the contributions from all citizens in a diverse society, and when societies or organizations fail to do so, they are the poorer for losing the multitude of beneficial contributions by members of the classes of people whom said societies or organizations reject and/or cast out.
Even granting that what you say is true for the sake of this discussion, the issue, in my mind, is whether the government, primarily through the courts, should be able to force people to “recognize and appreciate the contributions from all citizens in a diverse society.” Is there any limit to what means the government should be able to use to accomplish this purpose? What do you, as an individual, gain, when such recognition occurs as a result of the government employing force to compel the individual to violate his conscience? What does society collectively gain when that happens? What is really gained when “a man convinced against his will, is of the same opinion, still”? Doesn’t that violate Doctrine & Covenants Section 121:41-44? Doesn’t it violate various provisions of the treatise on the proper role of government set forth in Doctrine and Covenants Section 134? If someone thinks I’m wrong, he’s welcome to use whatever lawful means he has at his disposal to convince me. Government coercion seems to be one of the least effective means of doing so. And what’s the limiting principle? Is there one? As abhorrent as discrimination is, fascism and/or totalitarianism strike me as poor antidotes, the equivalent of destroying one’s house by attempting to swat an elusive fly with a sledgehammer. And as much as I appreciate the Obergefell v. Hodges majority’s magnanimous declaration that the devout may continue to “believe” and to “teach” as they wish with respect to physical intimacy between gays and lesbians and gay marriage, the First Amendment’s Free Exercise Clause is broader than that.
With due respect, I don’t think a valid use of use of public accommodations laws is that they be used as cudgels to force unwilling businesses to engage in expressive conduct which those businesses and their owners do not support. If a business owner does not wish to engage in expressive speech (more on this below; see my final paragraph) in support of gay marriage, he should not be forced to do so. (And I say that as someone who would have no problem baking a cake for a wedding between a gay couple. I might draw the line at decorating it with gay themed items, but big deal: buy your own plastic, gay or lesbian bride and groom and place them prominently atop the otherwise-nicely-decorated cake’s top tier.)
That having been said, I would still allow a gay couple who is refused service to sue on the basis of sexual orientation discrimination, but I would require them to show by the relevant evidentiary standard (probably preponderance of the evidence) that their efforts to obtain a similar good or service at a similar price were unavailing, and I would limit recovery to the difference between what a refusing business owner would have charged them and what an accepting business owner did charge them, along with related, reasonable expenses such as travel. To those who argue that this regime is a step back into the Jim Crow South, I would say that isolated, episodic, de facto discrimination is different in kind and in degree from the formerly entrenched, state-sanctioned, common, de jure discrimination that the 14th Amendment now prohibits. A gay couple is free to seek a willing provider, while the unwilling provider’s First Amendment rights also are protected.
Whether [another poster] is successful in his search for case law outlining the contours of expressive conduct, the United States Supreme Court long has recognized that concept in its jurisprudence. By analogy, I don’t support flag burning. I think there are other, better, more effective ways to demonstrate one’s dissatisfaction with the government and with government action. Occasionally, I still get misty when I hear or sing The Star Spangled Banner or other patriotic songs, or when I see the stars and stripes. If someone wanted to burn the flag as a means of protest, I would do everything in my power to convince him to use other, more effective means at his disposal to air his grievances. But, that said, if he were still determined to burn the flag to express his dissatisfaction, Texas v. Johnson, 491 U.S. 397 (1989), recognizes that he has that right.
If the United States Supreme Court has found that the pure act of burning a flag may have an expressive component such that doing so may be considered speech, I fail to see how decorating a cake – cake which may, and, indeed, which often does contain symbols or messages in celebration of the occasion being commemorated – is not expressive speech, as well.
In response to another poster who feels that religious justifications for a business owner, e.g., (and this is my example, not his) refusing to bake a cake for a gay wedding are too weak because, essentially, anyone can cite a religious objection as justification for declining to comply with the law, I wrote:
I don’t know that sussing out such issues is, would be, or ought to be, as difficult as you suggest. If someone claims that he’s an observant [x], the next question is “What do observant [x]s do orrefrain from doing?” “What is the attitude of most observant [x]s with respect to [y]?” “Does [x] do (or refrain from doing) what other observant [x]s do (or refrain from doing)?” “Does [x] share the attitude of most observant [x]s with respect to [y]?” “Has he ever commented publicly on the matter/such matters? If so, what has he said?” And so on. If someone wanted to know my attitude concerning matters of faith, all he’d have to do is search my posting history here.
At this point, my original, condescending interlocutor chimed back in. As our conversation continued, he wrote, “Call it [his response] condescending if you like.” I responded, “Thank you. I will, because that’s precisely what it is. Ignorance and hubris isn’t a good combination.” He continued, “But quite frankly it is you that doesn’t seem to know how all of the district and appellate courts ruled on gay marriage.” I replied:
How so? If you can point to an opinion, the holding of which I have misstated, I will be happy to retract my misstatement of the holding. (Now, that having been said, simply because I disagree with many such holdings doesn’t mean that I do not know what those holdings are).
He wrote, “While I may have been wrong about one single court ruling, my assertion that there gay marriage was deemed a constitutional right under the 14th amendment remains the same.” I didn’t bother pointing this out to him, but any reasonable, intelligent, astute reader would be able to recognize that as a clear instance of “Moving The Goal Posts,” since his original assertion was that the rulings of all federal trial and appellate courts with respect to gay marriage were unanimous.
You do no credit to yourself nor to those who agree with your position when you attempt to diminish your own errors while imputing errors to your rhetorical opponents that they have not made. It causes your interlocutors to have serious doubts about how serious you are about attempting to dialogue with them in good faith. Confucious say, “If in deep hole and man gives you shovel and ladder, make sure use right one to get out of hole.”
I have profound disagreements with the originator of this thread about the issue under discussion, as I’m sure he does with me. In contrast to you, however, I have no doubt that he is attempting to dialogue with me in good faith.