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A week and a half after the U.S. Supreme Court’s marriage decisions, we are still sorting through the ashes trying to figure out the long-term. Just hours after the Court toppled part of DOMA, House and Senate liberals tried to finish the job, filing bills to wipe the entire law of the books, including the part that says that states would be forced to recognize same-sex marriages performed in other states-regardless of what their local laws may be.

Tony Perkins of the Family Research Council writes, “Under the Supreme Court’s ruling, only homosexual couples in states that have redefined marriage (12, plus the District of Columbia) can access the 1,138 federal tax, health, residency, military, and other perks reserved for natural spouses. With their two bills, Sen. Dianne Feinstein (D-Calif.) and Rep. Jerry Nadler (D-N.Y.) are clearing the decks for a massive expansion of the Court’s ruling — which will be the first salvo in a full-blown war against state marriage laws. As the Left tries to tear down the federal walls protecting marriage, this week they also promised to go after the 38 states standing for marriage.”

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Fortunately, backers of natural marriage in Congress and across the nation are just as determined, and the The Washington Post reports that tens of millions of dollars will be spent on both sides of this battle in the next years to come.

For those who stand for marriage (and religious freedom which will take a big hit if same-sex marriage triumphs), it is important to refuse to buy the oft-repeated argument that same-sex marriage is inevitable. That is a recipe for sitting down on the road and giving up, right at a time when a redoubling of effort is required.

Experiments which have tried to see if the frog, put into cool water really will stay there and die when it starts to boil have found something interesting. The frog will jump to safety. For marriage proponents, it is time to jump.

The LDS Church’s Response.

Having said that, protecting marriage and religious freedom is not to be an easy battle, and it was made much worse by both of the U.S. Supreme Court’s rulings. We’ll talk about the two of them here, starting with Prop. 8

The official response of the LDS Church about the Prop 8 ruling is of special interest to us as Latter-day Saints because they called it “troubling.” Here’s a piece of that statement:

“By ruling that supporters of Proposition 8 lacked standing to bring this case to court, the Supreme Court has highlighted troubling questions about how our democratic and judicial system operates. Many Californians will wonder if there is something fundamentally wrong when their government will not defend or protect a popular vote that reflects the views of a majority of their citizens. [emphasis added] 

This statement reflects that there are troubling questions about how the American system is currently operating, at least in this case. I don’t take this to be a superficial statement that merely expresses disappointment in the outcome, but a more far-reaching concern about the processes that brought us to this point. The term “fundamentally wrong” is also a bold statement from the LDS Church that usually offers the gentle response.

If the decision on California’s Proposition 8 a few days ago was “troubling” and “fundamentally wrong”, you have to wonder in what way? These words announce that we should pay attention to not just the outcome, but what it bodes for our current democratic and judicial systems. These are words that should alert us.

I don’t pretend to know what the LDS Church entirely meant by the statement, but I can share what is troubling me, both about the Proposition 8 decision and the Defense of Marriage decision. Both decisions were a swipe at our American system which we value.

Proposition 8

In 2008, 52 percent of California voters supported Proposition 8, an amendment to their constitution defining marriage as between only a man and a woman. When the measure, which was now law in California, was challenged in federal court, Democratic Governor Jerry Brown, attorney general Kamala Harris, and the Democratic legislature all refused to defend the law. Why? For no greater reason than that they didn’t agree with it. They were for same-sex marriage.

Wait a minute. Isn’t it the sworn duty of elected officials to sustain the law? Isn’t that, in fact, the promise they make when they assume office? In addition, isn’t it a basic part of the trust that voters place in their elected officials, that they will defend and sustain the law? If that trust is broken, isn’t a piece of the democratic experiment broken? Couldn’t it be easily assumed by voters that if officials don’t need to sustain the law, why should they?

What kind of unseemly power does it give a president, governors or attorney generals to pick and choose which of the people’s laws they like and will defend if they are challenged?

In California, millions of dollars were spent and thousands of volunteers gave time and some endured persecution to pass Proposition 8. What disillusionment must they feel when they see it so easily chucked by the governor’s refusal to defend the law they passed? Beyond that, will they be willing to be involved in any referendum process in the future-no matter what the subject-when they have learned that their voices can be so easily silenced?

Since the elected officials refused to defend Proposition 8 when it was challenged, the supporters stepped in to defend the law they had worked so hard to pass. The state supreme court unanimously allowed the proponents of Prop 8 to defend it in court, a decision that was ratified by the federal Ninth Circuit Court of Appeals when the Prop 8 case was heard there on its journey to the Supreme Court.

The word to describe the ability to defend in court is “standing.” The Prop. 8 supporters were given standing in court to defend the marriage law. What the Supreme Court said last week was that the supporters did not have standing to support Prop. 8, even when those who should have refused to do so.

John Fund, writing in National Review, notes, “Justice Kennedy said during oral argument in the Prop 8 case last March that not granting standing to the proponents of Prop 8 in federal court would have dangerous implications, what he called a one-way ratchet.’ All state officials have to do is refuse to defend a law passed by the people, watch as those seeking to overturn the law go judge-shopping (Prop 8 opponents found a gay judge in San Francisco who did not disclose his sexual orientation), and then watch the proponents of the initiative lose in federal court because they lack standing’ to represent the law they wrote.

“Justice Kennedy, in his dissent from the majority, warned that the Court’s decision also has implications for the 26 other states that have an initiative or popular referendum system, and which, like California, may choose to have initiative proponents stand in for the State when public officials decline to defend an initiative in litigation.’

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<hr class=’system-pagebreak’ /><hr class=’system-pagebreak’ /><hr class=’system-pagebreak’ />0001pt;”>Ryan T. Anderson, writes, “It is scandalous that the governor and attorney general refused to perform their duty. That abdication of their constitutional responsibility should not have prevented these laws from having a vigorous defense in court. This sets a disturbing precedent and distorts the balance of powers between the legislative, executive, and judicial branches of government. It would allow the executive branch to effectively veto any duly enacted law simply by refusing to defend it against a constitutional challenge.”

The Defense of Marriage Decision


What was troubling about the U.S. Supreme Court striking down section 3 of DOMA, was not just the loss of the federal definition of marriage as being between a man and a women. It was the reason the justices gave for it. It boils down to this. Anyone who defends marriage does it out of animus for an unpopular group.

Hadley Arkes notes, “In [Justice Anthony] Kennedy’s translation, the Defense of Marriage Act showed its animus in its very title: The defense of marriage was simply another way of disparaging and denigrating’ gays and lesbians, and denying dignity to their relationships.’

Kennedy wrote, “The Constitution’s guarantee of equality must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”

Did you catch that? The Court is saying here that the majority of Congress who overwhelmingly passed DOMA in 1995, and President Clinton who signed it, were only acting out of raw bigotry, and by implication it is only bigotry that would motivate a citizen to support marriage.

The majority of the Court refused to acknowledge or wrestle with the serious scholarly and public policy arguments that support marriage as the union of one man and one woman.

scaliaJustice Antonin Scalia was incensed by this verdict from the Court’s majority, and insisted on reading his dissent aloud. It’s worth noting how far afield he thinks the Court has gone in this verdict.

“Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court’s scorn,) but our respected coordinate branches, the Congress and Presidency of the United States. Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute.

“The majority does the opposite-affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing mention of the arguments put forward’ by the Act’s defenders, and does not even trouble to paraphrase or describe them. I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.

“The majority [of the Court] says that the supporters of this Act acted with malice with the purpose’ to disparage and to injure’ same-sex couples. It says that the motivation for DOMA was to demean,’ to impose inequality,’ to impose . . . a stigma,’ to deny people equal dignity,’ to brand gay people as unworthy,’ and to humiliate’ their children,

“I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution

“In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it…enemies of the human race.”

Justice Scalia also tells us what this might mean. He says that this opinion can now become the predicate for challenges to laws in all of the states. In federal court, a couple of the same sex can invoke Justice Kennedy’s opinion in the DOMA to suggest that no rational ground exists to uphold any law protecting marriage. These kinds of laws can only be explained in terms of “animus.”

Worse Than We Thought

So the decisions behind these marriage laws are worse than we thought-and those who rejoice that they are limited have cheered too soon. Still, there are battles to be won and gains to be protected in the battle for traditional marriage, and it is no time to stay in the pot and be boiled.