By Morris A. Thurston[1]

The United States Supreme Court has agreed to hear the appeal of the Ninth Circuit’s decision in Hollingsworth v. Perry, generally known as the Prop 8 case. Briefing is underway and the supporters of Prop 8 (the folks at “ProtectMarriage.com”) have filed their opening brief asking the Supreme Court to overturn the Ninth Circuit’s ruling. A number of other organizations and individuals who are not parties to the case (including the Church of Jesus Christ of Latter-day Saints) have filed amicus briefs requesting the same result. The briefs of those opposing Prop 8 (and supporting the Ninth Circuit’s ruling) will be due February 21. Oral argument is scheduled for March 26.

A Brief History

Before discussing the Church’s brief, perhaps it would be helpful to review how we got where we are. In 2000 California voters approved Proposition 22, a ballot measure declaring that marriage would remain reserved for heterosexual couples. The Church played a significant role in the passage of that measure, but operated primarily behind the scenes, preferring to focus attention on the Catholic Church, which was seen as having a stronger public image in California.

Three years later the Massachusetts Supreme Court ruled that its state constitution guaranteed same-sex couples the right to marry. Over the next several years, battles over same-sex marriage in a number of other states were waged in the courts, in the legislatures, and on the ballots. Even President Bush entered the fray, declaring that the nation must defend “the sanctity of marriage” and calling for an amendment to the United States constitution to define marriage as a union between a man and a woman.[2] A substantial number of states (including Utah in 2004) passed bans on gay marriages. State courts came down on both sides of the issue, but most ruled that their state constitutions did not guarantee the rights of people of the same sex to marry.

Then, on May 15, 2008, the California Supreme Court struck down Prop 22’s ban on same-sex marriages, ruling that the California constitution guaranteed a fundamental “right to marry” that extended equally to same-sex couples. Opponents of same-sex marriage were chagrined and within a month a ballot initiative that would amend the California state constitution to define marriage as between a man and a woman was qualified. Less than three weeks later, on June 20, the First Presidency issued a letter, to be read in the sacrament meetings of all California wards, urging Church members to “do all you can to support the proposed constitutional amendment by donating of your means and time to assure that marriage in California is legally defined as being between a man and a woman. Our best efforts are required to preserve the sacred institution of marriage.”

The campaign that followed was hard fought and became the most costly ever for a California ballot initiative involving a social issue. Well more than half the $38 million contributed in support of Prop 8 was Mormon money, the vast majority of which came from individual Church members who were strongly urged by bishops and stake presidents to contribute. On November 4, 2008, Prop 8 was passed by a slim majority of 52% of California voters.[3]

After first seeking unsuccessfully to overturn the vote by petition to the California Supreme Court, proponents of same-sex marriage filed a lawsuit in Federal Court seeking a ruling that Prop 8 was contrary to the equal protection and due process clauses of the United States Constitution. This case went to trial before U.S. District Judge Vaughn Walker.[4] After hearing evidence from a variety of expert witnesses, on August 4, 2010, Judge Walker granted a verdict in favor of the plaintiffs and issued detailed findings of fact to support his conclusions of law.

Following the ruling by Judge Walker, the case was appealed to the United States Court of Appeals for the Ninth Circuit. By a vote of two to one, the Circuit Court panel upheld Judge Walker’s ruling but on much narrower grounds than the judge had articulated. (The lone Circuit Court dissent was filed by Randy Smith, the LDS judge.) The majority relied on the precedent of Romer v. Evans, holding that by taking the right to marry away from same-sex couples, Prop 8 was based on “animus” toward gay couples rather than rational grounds. The court noted, for instance, that granting gay couples the right to marry would not change laws governing parenting and adoption, nor would it affect the procreative behavior of opposite-sex couples, two of the arguments that proponents of Prop 8 had made. The claim that denying gay people the right to marry each other would harm traditional marriages was also deemed to have no basis in fact.

The Issues Before the Supreme Court

The Hollingsworth case presents an unusual variety of issues and, as a result, there are several possible outcomes.

The Supreme Court could rule that the petitioners lack “standing” to pursue their case. This is an issue because the nominal defendant in the trial before Judge Walker was Jerry Brown, the governor of California. Brown is a proponent of same-sex marriage and when Prop 8 was challenged in court, he refused to mount a defense. Judge Walker granted the proponents of Prop 8 (ProtectMarriage.com and others) the right to appear in Brown’s stead. The Supreme Court could sidestep the substantive issues by holding that the appellants have no standing to bring an appeal because they were not actual parties to the District Court lawsuit. If the Supreme Court did that, Californians would have equality of marriage, but the ruling would have no effect in any other state.

The Supreme Court could rule in favor of the respondents (the supporters of same-sex marriage) on the same basis as the Circuit Court (relying on Romer v. Evans ), a holding that would affirm that California voters were motivated by animus. Such a holding would also be limited solely to the facts of the California case and therefore would have no direct effect on same-sex marriages in any other state.

), a holding that would affirm that California voters were motivated by animus. Such a holding would also be limited solely to the facts of the California case and therefore would have no direct effect on same-sex marriages in any other state. The Supreme Court could rule in favor of the respondents on the basis that denying the rights of same-sex couples to marry is a violation of the equal protection and due process clauses of the constitution (the grounds cited by Judge Walker). This would be a landmark holding that would invalidate all laws prohibiting same-sex marriages throughout the United States.

The Supreme Court could rule in favor of the petitioners (opponents of same-sex marriage), by ruling that in passing Prop 8 the California voters did not act out of animus toward gays, nor did they violate the constitutional rights of gay couples. Such a ruling would end the possibility of a constitutional right of same-sex couples to marry throughout the United States, though it would not foreclose state or federal legislatures or voters from passing laws in the future giving such couples the right to marry. Should this happen it is almost certain that we would see another ballot measure in California seeking still another amendment of the California constitution to expressly provide for same-sex marriages. With public opinion shifting toward acceptance of same-sex marriages, and with the addition of young people who will have reached voting age since Prop 8, the chances of a ballot measure succeeding a second time around are significantly greater.

In addition to these possibilities, the Supreme Court will also hear challenges to the federal Defense of Marriage Act (DOMA) this term, but evaluating those cases is beyond the scope of this post.

The Church’s Amicus Brief

Whenever a high-profile case reaches the Supreme Court it is common for various interested parties to petition for the right to file “friend of the court,” or amicus, briefs. Amici are not parties to the action, but persons who believe their rights will be affected by the outcome of the case. Numerous parties were granted the privilege of filing amicus briefs in the Hollingsworth case, including the LDS Church. It is common for various interested parties to join together in such briefs for financial reasons (it can be costly to hire lawyers) and in this case, four other petitioners joined in the LDS brief.[5] I will refer to it as “the LDS brief” because Salt Lake City’s Kirton McConkie, the Church’s primary outside counsel, filed it and there seems little doubt that the Church is the controlling party. The other co-amici probably contributed to the funding of the brief.

Before turning to the Church’s brief, I will note in passing that among the other amicus briefs is one filed on behalf of the Westboro Baptist Church, an organization that claims only a handful of members (mostly the family of Fred Phelps) and is widely known for its virulent anti-gay activities. It came to prominence in 1998 when it was featured on CNN for picketing the funeral of Matthew Shepard, a gay man murdered by anti-gay bullies in Wyoming, but since then WBC has participated in thousands of protests in hundreds of cities across the United States. It even picketed President Hinckley’s funeral, criticizing him for being a “lying false prophet” who had been too accepting of gay people. The Westboro brief relies heavily on the Bible, rather than legal precedent, and makes for entertaining, if not exactly scholarly, reading.

Now back to the LDS brief: The Kirton McConkie lawyers who are listed on the brief are all shareholders of the firm—Von Keetch, Alexander Dushku and Shawn Gunnarson. While I don’t know any of them personally, by reputation they are all fine lawyers who have acknowledged expertise in the area of First Amendment law. All three received both their bachelors and law degrees from Brigham Young University. Keetch is the chief outside counsel for the Church and was ranked first in his law school class.

Amicus briefs typically do not address every possible issue in the case, but rather focus on those issues in which the filers feel most invested. As I read through the arguments made in the brief, the following ten questions came to me:

1. Is One-Man One-Woman Marriage an Axiom of Western Civilization? The Church leads off, in the very first sentence of the “Summary of Argument,” with this observation: “Marriage defined as the union of one man and one woman is an axiom of Western civilization….” (Brief, Page 1) This, of course, is the same argument that politicians and lawyers used against the Church in the nineteenth century as they passed various anti-polygamy laws targeting Mormons. Here is a quote from the Supreme Court decision in Reynolds v. U.S. (1878), the most famous of the anti-polygamy cases:

“Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.”

Isn’t it interesting how the worm turns? Now the lawyers for the Church are using the “western civilization” argument in an attempt to stigmatize a non-traditional marriage practice, just as non-Mormons did in the nineteenth century when attacking Mormon polygamy.

One wonders how much longer the argument can be made that one-man one-woman marriage is axiomatic of western civilization. There are now eleven countries in which same-sex marriage is legal, and several others where it is legal in certain parts. All of these countries are western nations. Bills are pending in another ten or so western countries which would legalize same-sex marriages if passed. Indeed, the last countries to accept same-sex marriage are likely to be the Islamic fundamentalist nations (many of which, of course, have legalized polygamy and are seen as hostile to women and other minorities).

2. Is the Constitutionality of Same Sex Marriage an Important Civil Rights Issue? The Church’s lawyers seek to dismiss the importance of the issue before the court by asserting: “It is false and overly dramatic to depict the constitutional claim to same-sex marriage as ‘the defining civil rights issue of our time.’” (Pages 3-4) This seems contrary to the approach taken by the ProtectMarriage.com petitioners in support of Prop 8, who opened their brief with this statement: “Over the course of the last decade or so, our Nation has been involved in a ‘great debate,’ about whether to redefine the age-old and vitally important institution of marriage to include same-sex couples.” There seems little doubt, whatever words are used, that there is no social issue more important in the present day than the question of whether same-sex couples have a constitutional right to be married. It seems quite likely that this will become the defining civil rights issue of at least the first part of the twenty-first century.

3. Were the Campaigners for Prop 8 Motivated by Animus Toward Homosexuals? This is one of the key issues because it is at the center of the Ninth Circuit’s ruling. Did the proponents of Prop 8 have rational grounds for supporting the law or were they motivated by animus (hostility or ill will) toward homosexuals?

The lawyers for the Church are understandably eager to counter any suggestion that Mormons were motivated by animus. “Those among us who campaigned for this law,” they say, “did not do so out of anti-gay animus or a benighted ‘judgment about the worth and dignity of gays and lesbians as a class.’” (Page 7)

Unfortunately, as many of us who lived through the Prop 8 campaign in California can attest, a great many of the supporters of Prop 8, including Church members, were quite open in their disparagement of gays and lesbians as a class of people. I have personally heard members decry the fitness of gays and lesbians to be parents, opine that most homosexuals are promiscuous, claim that being gay is a choice and that those who choose it are committing a sin, and even declare that the AIDS epidemic was God’s judgment on homosexuals. One woman expressed in testimony meeting her regret that her niece had gone to Stanford where she had “gotten involved with drugs, sex and supporters of gay marriage.” In a talk from the pulpit, a member of our stake presidency compared opponents of Prop 8 to Satan’s minions; however, to be fair, he was quoting from an article in Meridian Magazine written by the leader of the Church’s California campaign.[6]

I once spoke to a Church leader who said, “The brethren aren’t homophobic; they aren’t afraid of homosexuals.” Of course, that suggests a misunderstanding of the meaning of “homophobia.” The fear demonstrated during the Prop 8 campaign was that granting civil rights to homosexuals would lead to their acceptance into society’s mainstream and eventually cause embarrassment to a Church that would be perceived as regressively “out of step,” much the same as it was with respect to equality for blacks prior to the 1978 revelation on the priesthood.

That phobia was further demonstrated by materials that were handed out in church meetings and forwarded to all Church leaders throughout California by local leaders of the initiative and by public relations directors. Here is a sampling of arguments by Church members that I am personally aware of. You can be the judge of whether they were homophobic and reflected an animus toward gays.

A brochure titled “10 Reasons to Protect California’s Marriage Law with a Constitutional Amendment” was passed out at Church meetings. So as not to get bogged down, I’ll only quote three of its astounding arguments (emphasis in the original):

Children Need Fathers: Same-sex marriage deliberately creates motherless or fatherless families. If same-sex marriage becomes common, social scientists predict the majority of same-sex couples with children would probably be lesbians. This means there would be more children growing up apart from fathers. Studies are conclusive that fatherless households increase crime. Boys whose parents divorced or never married are two to three times more likely to end up in jail as adults.

Marriage Leads to Prosperity: Nearly 80 percent of children suffering long-term poverty come from broken or never-married families. Because married couples share the responsibilities of domestic work and market work, they produce more together than either one could alone. In fact, labor economists have tracked that married men earn 10 to 40 percent more than single men even after controlling for other factors. Economists have named this phenomena [sic] the “marriage premium.”

To Sustain the Population: All of us need the rising generation to sustain the government, the military, the economy and other systems and institutions for which all of society depends. To sustain the population we need a birth rate of 2.1 percent children per woman. Countries that have legalized same-sex marriage have some of the lowest fertility rates in the world. The Netherlands, Sweden and Canada all have birthrates around 1.6 children per woman.

One might easily conclude that homophobia (in addition to nincompoopery) is at work in these arguments. The first paragraph relates to broken heterosexual homes; no legitimate studies have shown that children raised by gay parents are more likely to be criminals. The second paragraph is actually an argument in favor of gay marriage, since married gay couples can share responsibilities in the same way that married heterosexual couples can. The third argument deliberately fails to note that the cited countries have low birthrates, not because of same sex marriage, but because they are developed countries with educated populations. It also fails to note that many other developed countries in which same-sex marriages are not permitted have even lower birthrates. There is no correlation between same-sex marriage and birthrates. Of course, If high birthrates are the goal, the most efficient way to accomplish that is to engage in war and genocide, as some of the highest birthrates in the world are found in countries such as Mali, Somalia, Afghanistan and the Congo.

Another flyer that was passed out in Church meetings was called “Six Consequences the Coalition Has Identified If Prop 8 Fails.”[7] These so-called adverse consequences were legal in nature. Some reflected animosity toward homosexuals in addition to being factually inaccurate. (“Children in public schools will have to be taught that same-sex marriage is just as good as traditional marriage.”) Others were based on legal cases, but they were cases that arose from existing laws prohibiting discrimination against homosexuals, not laws permitting same-sex marriage, and thus were irrelevant to Prop 8. I became personally involved in rebutting that handout by writing “A Commentary on Six Consequences if Prop 8 Fails.” Although I was led to believe by Church authorities, after publishing my commentary, that use of the Six Consequences would be discontinued, apparently any such direction failed to reach many on the local level and I know personally of instances of its being handed out in some wards on the eve of the election.

During the height of the Prop 8 campaign I received a number of emails from an influential local Church leader that were sent to his mailing list. A couple of quotes:

We do not throw out the “gold standard” for the foundation of the family (and bring upon ourselves the resulting social costs) by replacing it with the less socially beneficial “genderless marriage,” simply to satisfy the desires of same gender couples to be treated as if they were what they can never be: man-woman couples.

We cannot change centuries of understanding about the meaning of marriage just to satisfy same-sex couples who think they are in love.

It doesn’t take a social scientist to see that these are highly offensive to gays and lesbians in committed, loving relationships.

Another Church member (not a leader) forwarded a link to a pro-Prop 8 video to everyone on his email list (including me) with this comment: “Listen to this video and please forward to everyone on your list. This is just the tip of the iceberg, and I sure hate seeing millions of dollars wasted trying to stop these morons. Just wait until they get the full impact of the backlash that’s inevitable, because of their trying to force their perverted lifestyles on the rest of us.”

I am not suggesting that the Brethren have animosity toward gays and lesbians; however, by failing to carefully monitor the distribution of fallacious and homophobic campaign materials, the Church left itself open to charges of animus. Subsequent to the Prop 8 campaign the Church has made diligent, and, I believe, sincere efforts to burnish its image relative to homosexuality. Its new website, MormonsAndGays.org is certainly a step in the right direction, as is its support of same-sex domestic partnerships in Salt Lake. Likewise, its decision to remain on the sidelines during the recent same-sex marriage ballot campaigns in Washington, Maine, Maryland and Minnesota suggests it has reconsidered its response to this issue. But this does not change the fact that many Church units in California utilized a barrage of anti-gay literature and rhetoric during the Prop 8 campaign.

4. Would a society that accepted same-sex marriages be chaotic? The Church’s brief writers often avoid expressing controversial points as their own, but instead quote from decisions in previous legal cases, in some cases from dissenting opinions, in order to make their points. For example they contend that “defenders of traditional marriage are sincerely concerned that ‘a society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic’ and less civil for all Americans.” (Page 10, quoting the dissenting opinion in the Massachusetts same-sex marriage case).

Of course, the proponents of same-sex marriage are not seeking a society without the institution of marriage. They want gay and lesbian couples to have the right to marry, just like heterosexual couples. Do the Church’s lawyers really believe this would lead to chaos? Since the Massachusetts dissent was written we have had nearly a decade of same-sex marriages in that state. Does chaos reign there? Does it reign in Canada, or in Iowa, Connecticut, New Hampshire, New York, Vermont, Maine, Maryland, Washington and the District of Columbia, all of which permit same-sex marriages?

Of course, heterosexual intercourse, procreation and childcare are already disconnected processes for reasons having nothing at all to do with same-sex marriage. I’m sure most instances of heterosexual couplings do not have as their goal the production of offspring. It is a well-known fact that the majority of children in America are not being raised in a home with both their biological parents for reasons that have nothing to do with homosexuality.

5. Do the proponents of same-sex marriage have a vision of marriage that “competes” with heterosexual marriage? The Church’s brief suggests there are two different “visions” of marriage—one by the defenders of traditional marriage that focuses on the offspring of marriage and a “competing vision” that is “comparatively recent” and focuses on the two adults in the relationship. (Page 10) They suggest that In this second vision, the role of children is “at most peripheral.” The brief writers maintain “the question before this Court is whether the Constitution imposes on the Nation a novel conception of marriage over the one that has endured in all societies for nearly all human history.” But my question is this: Why do these two visions of marriage need to be seen as “competing?” Can’t marriage serve both functions—rearing children and providing for the well-being of the marriage partners? Indeed, doesn’t marriage currently serve both functions? Surely marriages that satisfy the needs of the marriage partners benefit society as a whole, even if there is no possibility of procreation.

I have two close, opposite-sex friends, both active members of the Church, who were recently married to each other, one after the death of his wife and the other after a divorce from her husband. Both are well past child-bearing age. The whole ward celebrated their marriage. We didn’t regard it as “competing” with marriages of individuals who wish to bear children. So why should we regard same-sex marriages as being in “competition” with traditional marriages? If the Church encouraged gay people to enter into heterosexual marriages this argument might make some degree of logical sense, but the Church does not.

6. Do historical Court opinions on marriage support those who would ban same-sex marriage? The Church’s brief cites earlier court opinions as supporting “traditional marriage” when, in fact, those cases could just as well apply to same-sex marriages.

“[T]his Court itself has long endorsed traditional marriage, describing it as ‘the most important relation in life, as having more to do with the morals and civilization of a people than any other institution.’ [Citation omitted] It has extolled marriage as ‘an institution more basic in our civilization than any other,’ [citation omitted] and as ‘a relationship having its origins entirely apart from the power of the State.’ [Citation omitted.] It has held that ‘[t]he institution of marriage has played a critical role both in defining the legal entitlements of family members and in developing the decentralized structure of our democratic society.’ [Citation omitted.] …. And this Court has recognized that ‘the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. [Citation omitted.]” (Page 14)

None of the cited cases has anything to do with the question of whether same-sex marriages should be accorded legal status. They stand for the proposition that marriage and family are important in our society. As such, they should be regarded as arguments in favor of the rights of same-sex couples to marry each other and form families, rather than arguments against those rights!

7. Does the Family Proclamation prove that the Church did not act out of animus? The Church’s brief attacks the Circuit Court’s opinion as improperly insinuating that the amici have hostile attitudes toward homosexuals.

“Most disturbing to us, the decision below falsely insinuates that our support for traditional marriage amounts to hostility toward gays and lesbians…. Our faith communities and other religious organizations that supported Proposition 8 have rich religious narratives that extol the personal, familial, and social virtues of traditional marriage while mentioning homosexuality barely, if at all.” (Page 18)

The footnote supporting this statement cites “The Family: A Proclamation to the World,” a document that was issued in 1995 while the Church was in the midst of fighting against same-sex marriage in Hawaii and during a time when Church leaders were actively working behind the scenes on many levels against the “homosexual agenda.” While there is much in the Proclamation that does not deal with homosexuality, there can be little doubt that the wording (“marriage between a man and a woman”) was prompted, at least in part, by the anti-same-sex-marriage fervor of those fighting against it.[8]

8. Does a discriminatory law founded on a religious belief deserve Constitutional protection? The Church’s brief argues at length that the passage of Prop 8 based on religious beliefs does not violate the Fourteenth Amendment’s proscription of equal protection.

“Proposition 8 is not invalid merely because it reflects the people’s moral judgment – that is, their collective sense of what is right, just, and prudent – about the nature of marriage.” (Page 21) ….

“Reading into the Fourteenth Amendment a ban on lawmaking based on value judgments would immediately call into question the validity of numerous State laws, including those punishing gambling and prostitution.” (Page 22)

This argument is a bit of a red herring. Nobody is claiming that people cannot vote, or that legislators cannot legislate, for laws that reflect their value judgments. What is being argued is that when religious value judgments are the sole basis for denying a class of people equal rights, and when there is no evidence that those religious value judgments produce a societal benefit, then the law runs afoul of the Fourteenth Amendment.

There were lots of claims made by the proponents of Prop 8 during the voting campaign that were instrumental in achieving victory at the polls. However, when these claims were subjected to scrutiny before the District Court, which heard evidence from all sides, they were found seriously lacking. The District Court made some eighty findings of fact based on the evidence presented at trial. Here is just a sampling:

Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.

California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in California.

California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology. Approximately eighteen percent of same-sex couples in California are raising children.

The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.

Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.

The children of same-sex couples benefit when their parents can marry.

Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.

Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.

The gender of a child’s parent is not a factor in a child’s adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.

Studies comparing outcomes for children raised by married opposite-sex parents to children raised by single or divorced parents do not inform conclusions about outcomes for children raised by same-sex parents in stable, long-term relationships.

Well-known stereotypes about gay men and lesbians include a belief that gays and lesbians are affluent, self-absorbed and incapable of forming long-term intimate relationships. Other stereotypes imagine gay men and lesbians as disease vectors or as child molesters who recruit young children into homosexuality. No evidence supports these stereotypes.

The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.

Factual findings are the province of the trier of fact—in this case the District Court judge who heard and evaluated the evidence. Appellate judges—even the Supreme Court justices—are not supposed to disturb the findings of the trier of fact unless they are clearly contrary to the evidence presented at trial.

In this case the District Court determined that religious value judgments cannot be a reason to deny same-sex couples the right to be married because those value judgments are not based on factual evidence of any societal benefit. This is not the case with gambling and prostitution, both of which can easily be shown to have provable negative consequences.

The Church’s brief goes on to argue:

“Of course, Proposition 8 takes sides in the moral debate over same-sex marriage, but value judgments are unavoidable here because every definition of marriage implies one: there is no values-neutral ground in this area of social policy.” (Page 23)

But that is precisely the point that the Church lost in the trial of the facts. As a matter of fact there is a values-neutral, factually objective ground. The objective fact is that same-sex marriages do nothing to harm traditional marriages, they do not have a harmful impact on morals, nor do they adversely impact children. Quite the contrary, the District Court found that permitting same-sex couples to marry would have a positive effect on public morals and beneficent impact the children of those couples.

9. Should discriminatory laws be privileged because they are deeply rooted in tradition? Toward the end of the Church’s brief, the following statement is made:

“The common sense judgments of the people – deeply rooted in their history, traditions, laws, practices, common experiences, and sense of identity – that mark traditional marriage for distinctive protection furnish a ‘reasonably conceivable state of facts that could provide a rational basis’ for distinguishing between opposite-sex and same-sex couples.” (Page 32)

This same thing might have been said in the 1950s in support of those would have maintained the miscegenation laws that were in force in most states of the Union. There was a deeply rooted tradition in our country (and particularly in the South and the state of Utah) that interracial marriages were bad for society. In the case of Loving v. Virginia (1967), the trial judge, who ruled that interracial marriages could be prohibited by the states, explained his reasoning in religious terms:

“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

The Supreme Court in 1967 overturned that state court ruling, saying that “marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival…. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

It seems to me that when the Church’s lawyers argue that “California has an ‘undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people” (page 33), they are repeating the sentiment, if not the exact wording, of what the trial court judge argued in Loving.

10. Do children have a legally cognizable “right” to be raised by their biological parents? In concluding their brief, the Church’s lawyers cite Monte Neil Stewart (a Mormon and graduate of BYU), who wrote an article titled “Marriage Facts,” published in the Harvard Journal of Law and Public Policy. The argument (one that echoes the Family Proclamation) is that a child has a “right to know and be reared by his mother and father.” But is this a legally recognizable right? I don’t think even the Church’s lawyers would contend that. Can you imagine a child of divorced heterosexuals bringing a lawsuit to force her parents to live together and rear her? We have a number of good friends who have adopted multiple children of broken homes and have provided a wonderful upbringing for them. Should those children be entitled to exercise the “right” to be raised by their biological parents?

What about the infertile couple who produce a child by resort to a sperm bank? What rights does that child have to be raised by her biological parents? Just imagining the possibilities illustrates the illogic and impracticality of this supposed “right.”

Of course, the whole child-raising canard is merely a way of diverting attention away from what is really at stake here. California already grants same-sex couples, married or not, the same rights to adopt and raise children that opposite-sex couples have. Denying gays and lesbians the right to marry each other in California will not increase the number of children raised in traditional marriages but it will increase the number of children raised in homes of unmarried parents.

Conclusion. I would not want to leave the reader with the impression that I think the lawyers representing the Church have written a poor brief, or that they are to be faulted for having made the arguments they did. Everyone is entitled to legal representation. A lawyer’s job is to put forth the best arguments he can in support of his client, regardless of his personal feelings about the merits of the case. This is what the Church’s lawyers have done in an articulate and carefully written brief. I don’t personally find their arguments convincing, but perhaps a majority of the Supreme Court will.[9]

Only time will tell.

[1] Morris A. Thurston is a graduate of Brigham Young University and Harvard Law School and a retired litigation partner of Latham & Watkins, a global law firm. He has lectured and published on a variety of historical topics, including legal cases of Joseph Smith. His BYU Studies article titled “The Boggs Shooting and Attempted Extradition: Joseph Smith’s Most Famous Case” received an award of excellence from the Mormon History Association. He has co-authored, with his wife, Dawn, a book titled Breathe Life into Your Life Story: How to Write a Story People Will Want to Read. During the Prop 8 campaign he published a commentary on the document “Six Consequences if Prop 8 Fails,” rebutting the legal claims made in support of Prop 8, and he has participated in symposia at Utah Valley College and Harvard’s Kennedy School on Prop 8 issues. He is currently Chair of the Board of Directors of Dialogue Foundation and the host of the Dialogue podcasts. He is an active member of the LDS Church in Orange County, California, married, and the father of four children.

[2] The federal Defense of Marriage Act (DOMA), defining marriage as the legal union of one man and one woman, had been enacted into law in 1996, but it applied only to federal laws. A constitutional amendment would have applied to states as well; however, the proposal never picked up steam.

[3] Most constitutions require a super majority to approve a proposed amendment. For example, the United States Constitution requires approval of both houses of legislature by a two-thirds majority, then ratification by three-fourths of the states. By contrast, amending the California Constitution by initiative ballot requires only a simple majority of the votes cast.

[4] Judge Walker is gay, a fact that was widely known but not publically announced, when the trial was assigned to him. Although some have contended that a homosexual judge should have recused himself, the law clearly did not require it, just as it would not require a black judge to recuse herself from a matter involving a civil rights violation. Indeed, as we shall see, when a straight Mormon graduate of BYU Law School, Randy Smith, was one of three Circuit Court judges assigned to hear the appeal of this case, he appropriately declined to recuse himself, notwithstanding his orientation and his religious beliefs.

[5] The other parties joining in the LDS brief were a grab-bag of conservative religious organizations: National Association of Evangelicals, The Ethics & Religious Liberty Commission of the Southern Baptist Convention, The Lutheran Church—Missouri Synod, The Union of Orthodox Jewish Congregations of America, The Romanian—American Evangelical Alliance of North America, and Truth in Action Ministries. I find it interesting that even though the Church’s law firm wrote the brief, the Church’s name is buried in the middle of the list of amici, meaning that when most people refer to the brief they will refer to it as the “National Association of Evangelicals brief.” It does not appear that the list of amici is in alphabetical order. It would be interesting to know what percentage of the legal fees were paid by each party.

[6] I wanted to insert a link to the Meridian article, but it appears that it has been removed. The article was authored by pollster Gary Lawrence, the local leader of the Church’s Prop 8 campaign.

[7] Although the handout did not identify its author, Gary Lawrence later acknowledged that he wrote it.

[8] I should say, however, that I am in agreement with the brief writers that the Marriage Proclamation does not deal with homosexuality. When I told my bishop that I believed same-sex couples should have the right to marry, and therefore could not support Prop 8, he replied that the letter from the First Presidency appeared to follow logically from the Family Proclamation. I pointed out that the Proclamation did not say same-sex marriages were not ordained of God. My argument was unpersuasive to him and, I suspect, would have been unpersuasive to most Church leaders.

[9] There are nine justices on the Supreme Court, four of whom are generally considered liberal (Ruth Bader Ginsburg, Steven Breyer, Sonia Sotomayor and Elena Kagan) and four of whom are generally considered conservative (Chief Justice John G. Roberts, Antonin, Scalia, Clarence Thomas and Samuel Alito). The swing justice is generally considered to be Reagan appointee Anthony M. Kennedy. It seems likely to me that under no circumstance would Scalia or Thomas vote in favor of same-sex marriage, no matter how it was presented. I’m not sure it is a foregone conclusion how Sotomayor would vote; she is too new to have much of a track record and she is Roman Catholic. Likewise, I think it is possible that Roberts may be less conservative on this issue than many think. As a side note, Ginsburg, Breyer and Kagan are Jewish; all of the other justices are Catholic. There are no Protestants (or Mormons) on the Supreme Court.