The laws of the united States (and the individual states) have been formed over the course of history through the legislative process and subsequent judicial interpretation. We recognize a fundamental right to religious freedom that stems not merely from a pronouncement in the Constitution, but also from the very purpose of the founding of our nation. This right has been held as a fundamental right by many US Supreme Court decisions.
Against this background of religious freedom, the Church of Jesus Christ of Latter Day Saints was formed in 1830, in upstate New York, but due to relentless persecution, its members were forced to move - again and again - further and further west in order to experience true freedom of religion. Cities that were built by the hard work of church members that loved their religion were abandoned because the promise of freedom from persecution was never kept by the very country of which they were citizens. At one point, an extermination order - allowing Mormons to be shot upon sight was issued by Governor William Boggs of Illinois. Instead of a government tha provided remedies for such injustices and inequities - the US congress sought openly to destroy the Mormon Church, passing act after act condemning the Church and its practices.
One of these practices was the practice of plural marriage. The federal government passed anti-bigamy laws in order to prosecute the Mormon Church and its leaders. At the time these laws were passed, the great majority of Mormons had made the long and difficult migration west to Utah, and had created a new society there. The federal government diligently searched out Mormons to accuse them of bigamy. To be accused was to be convicted, and many were. In many cases the damages for violating the anti bigamy laws encompassed a surrender of assets - including meeting houses and potentially the Mormon Temples - buildings the members of the Church believe are necessary for salvation and fundamental to their religion.
Also threatened was the denial of statehood to Utah if the Mormons did not change their marriage practices. In response to this threat, and the threat to the lives of members, the then president of the Church issued a Manifesto which made it known to the government that the Church no longer practiced plural marriage. This was done to merely appease the lynch-mob type mentality that existed in Congress at the time and remove from them the only power they had to effectively eradicate the "Mormon problem" as they saw it. This disarmed them legally from doing so. However, the Church had not doctrinally renounced plural marriage and it remained a practice, although in secret. While this was dishonest, it was done to keep the members and leaders from the persecution of the government. No one questions the dishonesty of those in Nazi Germany who lied to their government to protect Jewish families from the unimaginable horror that was the Holocaust.
Years later, after Utah had achieved statehood, the practice of polygamy was doctrinally renounced by the Church as being contrary to the will of God at that time and as of today any member practicing polygamy will be excommunicated.
Why do I bring this up? After the election, the bigoted acts and words of many opponents to the proposition have seemed to cry "foul" at the LDS Church's involvement with the endorsement of the Prop. Some have suggested that the LDS church should not have voiced any opinion on the issue, especially given its history with governmental definitions of marriage. I propose that its history is precisely what compelled the Church to call on its membership to actively participate in promoting the initiative - the Church is indeed wary of the imposition of a governmental definition regarding marriage on its religious beliefs and practices.
So why would legislative action need to be taken? Many opponents of prop 8 state that homosexual marriages would have no impact on religious organizations - that homosexual marriage is merely an issue of love between consenting adults that deserve rights like any heterosexual couple. Unfortunately, the narrow framing of the issue does not reflect reality.
At a recent debate I had attended on the issue, the very well spoken and intelligent attorney arguing against the proposition made the statement that even if he were given the same exact rights in his relationship with his partner (then husband under the law) as any heterosexual couple, that would still not be enough. He wanted "equality" - he said he did not want to be left feeling second class, and without the word "marriage" legally describing his relationship, he felt that his goal could not be accomplished. I understand his argument and sympathize with his situation. However, even if this particular man and his partner had no inclination whatsoever to seek the religious sanction of their union in order to achieve his ideal of "equality", I am not convinced that another couple would not use the same argument to seek such a sanction. A year and a half of law school has taught me to zealously defend the interests of my client - and any good attorney will do so. Knowing this, there is no doubt in my mind that law suits in this vein of reasoning would surmount against not just my own church on the basis of discrimination - pursuant to the findings of the California Supreme Court - but against any religion that chose oppose such unions. It also does not help to deter such vexatious litigation that the Mormon and Catholic churches are very wealthy. Do you know how many lawsuits Walmart gets filed against it every day? Well, defending all these frivolous lawsuits is expensive and fighting lawsuits that have the fundamental cause of action rooted in recent Supreme Court holdings are even more expensive to defend against. I guess the churches could just settle the cases instead, but that can get equally as expensive and promote more money hungry plaintiffs to file suits. (There seems to be a pendant issue here regarding the inability to accurately and positively determine ifany given person as a homosexual or heterosexual without relying strictly on their own testimony - the abuse potential here seems too big to just let slip by without mentioning it.)
My point is that any entity has a right to use the democratic process to defend its rights - even peremptorily. There are laws that limit the political actions that can be taken by 501(c)(3) organizations - of which the LDS is one - that have a tax exempt status. But these limits were not breached in this case. Lobbying efforts are deemed "okay" by the laws of this land.
The LDS church in this case, through its membership, seeks to protect against what it sees as the first move in an effort that threatens its ability to freely practice the religion it espouses.
To limit this debate to first impressions and what has VERY recently been called a fundamental right to marry (by a split California Supreme Court) misses the broader implications.
Why did this have to be a constitutional amendment? Well, the answer is that it didn't - that is until the voice of the people of California in establishing the Defense of Marriage Act was obliterated by four California Supreme Court Justices. At that point, there was simply no other option. The California Constitution authorizes the people, though popular initiative to amend the constitution and express which rights and laws are out of the reach of the judiciary. If there is something wrong in utilizing the process to effect this type of change I fail to see it.
I also want to say that this decision was not an easy one for me. I realize that my decision to vote yes has negatively impacted the lives of a lot of good people. I understand that families are changed because of this decision. It goes against my personal ideals to force others to live up to my own moral code; however, if I perceive that my morals and fundamental religious rights are threatened I will stand to protect them, as I would expect any self respecting person to do.
I fully support (like Barack Obama) the extension of legal rights to homosexual couples (although the logistics of doing so present some problems in certain cases), also like President Elect Obama, I am merely reluctant to redefine a legal, social and religious institution just to appease a modern interpretation of "equality" that seems well on its way beyond the plain language interpretation of the word and into the realm of becoming non-recognizable.
Its getting late and I am not sure if any of this makes any sense. Given that my purpose in writing this to attempt clarity, I realize that any more words I write now will not help me in this goal. So I hope this is helpful in at least understanding the bases for my vote, and I think many others' as well.
Peace yallz
1 comment:
Very well stated Nick! I see law school has taught you well. I agree with you.
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