Thursday, May 22, 2008

When The Constitution Hangs By A Thread--Part Three

(Please note that this post is informed by views expressed in Part One and Part Two of the series.)

In Part 3 of this exploration, I would like to examine not the morality of Gay marriage, but the Constitutionality. At the heart of this issue lies the intention of the Constitution of the United States to " the Blessings of Liberty to ourselves and our Posterity." (Preamble) The Church teaches that same-sex marriage is immoral and therefore should not be allowed. This religious argument is contrary to the First Amendment, which states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…" The framers thus sought to protect all Americans from the religious zealotry of a few. Some religious groups do not allow same-gender marriages, and others now recognize those marriages, even allowing clergy in local areas to perform same-gender marriage ceremonies. Should Americans be made to honor a conception of the Creator they don’t agree with? Of course not! This is why we have separation of Church and State.

The LDS Church has thrown a lot of time and money into supporting amendments to the federal and to state Constitutions which would preserve "traditional" marriage. An amendment to the U.S. Constitution is not feasible, as such decisions are clearly left up to the states to decide (Tenth Amendment). Besides, the blatant discrimination would violate Amendment Fourteen, which states: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Such an Amendment is as laughable as the first proposed Constitutional Amendment on the subject of marriage (1912):

Congressional Record, 62nd Cong., 3rd sess., Dec. 11, 1912. Vol 49, p. 502

Mr. RODDENBERY. ( ... ) The resolution to which I make reference is one already introduced by me, providing for an amendment to the Constitution of the United States, with the usual resolving clause, and the article is as follows:

That intermarriage between negroes or persons of color and Caucasians or any other character of persons within the United States or any territory under their jurisdiction, is forever prohibited; and the term "negro or person of color," as here employed, shall be held to mean any and all persons of African descent or having any trace of African or negro blood.

This proposed amendment was unconstitutional because it denied one group of people the equal protection of law (Article Four, Amendment Nine and Fourteen).

The Federal Marriage Amendment, which is supported by the Church treads upon the same shaky ground. It's been very confusing to me to see how the Church feels free to step in to this "moral issue," even though it is one which threatens the Constitutional rights of a large group of people. Perhaps what bothers me the most is the wording of the proposed amendments to both Federal and various state Constitutions, which would define marriage in the United States as a union of one man and one woman. By supporting this, is the Church burning all of its bridges and more or less making a declaration that it will never again practice or support polygamy? It feels like a repudiation and denial of our past.

Though I don't believe the Church as an institution should directly interfere in these matters, it seems to me that if they were to support a course of action to reinforce the moral stand they have taken, they should look at how the issue was handled in Vermont. This state allows same-sex couples to enter into civil unions or domestic partnerships that provide some of the rights and responsibilities of marriage under state law. This protects the unique institution of conjugal marriage and does not force any religious group to change its theology or traditions, as well as preserving Constitutional rights.

Readers, do you think the Church's involvement in the proposed marriage amendments is supportive of the Constitution (our Heavenly Banner)? Do you think that by supporting marriage for one man and one woman the Church is repudiating plural marriage as an eternal principle?

My brethren and sisters, I hope that we will go home from this conference determined as a great body of people, to stand for law, order, righteousness, justice and peace on earth and good will among all men. I believe as the Prophet Joseph has written, that the day would come when there would be so much of disorder, of secret combinations taking the law into their own hands, tramping upon Constitutional rights and the liberties of the people, that the Constitution would hang as by a thread. Yes, but it will still hang, and there will be enough of good people, many who may not belong to our Church at all, people who have respect for law and for order, and for Constitutional rights, who will rally around with us and save the Constitution. I have never read that that thread would be cut. It will hang; the Constitution will abide and this civilization, that the Lord has caused to be built up, will stand fortified through the power of God, by putting from our hearts all that is evil, or that is wrong in the sight of God, by our living as we should live, acceptable to him. (Charles W. Nibley, Conference Report, October 1922, p. 40.)

It was Joseph Smith who has been quoted as having said that the time would come when the Constitution would hang as by a thread and at that time when it was thus in jeopardy, the elders of this Church would step forth and save it from destruction.
Why the elders of this Church? Would it be sacrilegious to paraphrase the words of the Apostle Peter, and say that the Constitution of the United States could be saved by the elders of this Church because this Church and this Church alone has the words of eternal life? We alone know by revelation as to how the Constitution came into being, and we, alone, know by revelation the destiny of this nation. The preservation of “life, liberty and the pursuit of happiness” can be guaranteed upon no other basis than upon a sincere faith and testimony of the divinity of these teachings. (Harold B. Lee, Conference Report, October 1952, p. 18.)


Anonymous said...

I think it's sad to see the Church place itself in this awkward and troubling place. I agree (if I rightly interpret your position) that a constitutional amendment that singles out one group to have their civil liberties diminished is wrong in every conceivable way.

I can't agree with the Church's assertion that homosexuality is immoral but I can understand that it's a sincere interpretation of doctrine and reflects the general cultural consensus of the US' view of morality. I can respect the Church's prohibition and I -- never having remotely had the temptation -- have no difficulty in practicing it. For me, it fits neatly into my personal responsibility and covenant to remain pure and faithful to my husband -- a joy and comfort I've had for 40 years. But that's a world away from the civil protections every American has a right to depend on.

At the same time, respecting the rights enshrined in the Constitution and observing personal religious beliefs simultaneously remains as simple as continuing not to practice adultery or blasphemy without benefit of a constitutional amendment.

Meanwhile, I am very much impressed, indeed, at your grasp of the Constitution or research or both.

anonymous alice

RWW said...

Readers, do you think the Church's involvement in the proposed marriage amendments is supportive of the Constitution (our Heavenly Banner)?


Do you think that by supporting marriage for one man and one woman the Church is repudiating plural marriage as an eternal principle?

They are coming dangerously close.

PS: Whether an act is a sin, or not, has no bearing on whether it should be illegal.

Steven B said...

Do you think that by supporting marriage for one man and one woman the Church is repudiating plural marriage as an eternal principle?

Not as an eternal principle. The language of state and federal constitutions are clearly related to mortality. It is worth noting that in its premier document against same-sex marriage, the Proclamation on the Family, expressing God's eternal plan for mankind, the language clearly avoids limiting marriage to "one" man and "one" woman.

Nick Literski said...

The proposed amendment language invites a semantics game, with regard to plural marriage. To a reasonable person, a man with seven wives is part of seven distinct marriages, and each of his wives is involved in one marriage. As such, plural marriage shouldn't be outlawed by such an amendment. However, given society's general condemnation of plural marriage, I'd put my money on the supreme court choosing to construe the above family as one marriage, involving one man and seven women.

Nick Literski said...

I can't agree with the Church's assertion that homosexuality is immoral but I can understand that it's a sincere interpretation of doctrine and reflects the general cultural consensus of the US' view of morality.

Actually, this isn't really the case. A 2007 Gallup poll (located at ) indicates that 59% of Americans believe homosexuality should be "considered an acceptable alternative lifestyle." 47% of Americans believe homosexual relations are morally acceptable (compared to 49% who disagree). 46% of Americans support full marriage equality.

Homosexuality was deemed an "acceptable alternative lifestyle" by 75% of those who fell between 18 and 34 years of age (the largest conversion demographic of the LDS church, btw!), 58% of those between 35 and 54 years of age, and 48% of those 55 years of age and older. Even 36% of republicans said that homosexuality was an "acceptable alternative lifestyle."

The polling numbers demonstrating the acceptance of homosexuality have increased one to three percentage points almost every year since 1982. Homosexuality really isn't against "the general cultural consensus of the US' view of morality" anymore, and hasn't been for quite some time.

Anonymous said...


Those trends should be interesting when a new CA statute -- an amendment to our constitution that is intended to prohibit gay marriage -- comes up. When the law that was struck down as unconstitutional was passed, it was passed by a healthy majority. But there's speculation that a lot has changed in the public consciousness in the ensuing time -- as you suggest -- and there's further conjecture whether passing an amendment is a higher bar than a law and would even have passed back then.

Me? I just want our Constitution to protect civil liberties and the Church to stay out of politics as it publicly says it does.

As a straight woman who has managed to have a marriage I treasure and raise moral children in spite of having respectful and warm relationships with gay individuals throughout my life, the question I have asked in similar conversations, is "how does someone else's gay marriage threaten mine?". At this point I'm ready to amend that to "how can I delight in my marriage when it's become tarnished by the pettiness of 'I've got something you can't have'?". I'm not a 6yo and I don't want to be coerced into behaving like one or being manipulated by fear and guilt like one.

anonymous alice

M said...

I love this series that you are doing. But then, I love your blog. Ok, enough sucking up.

I think the church needs to stay out of politics other than encouraging its members to be actively involved. What happened to Joseph Smith's statement about teaching his people correct principles and allowing them to govern themselves? I don't think that the church is supporting the constitution by seeking to stop gay marriage. I appreciate the church's teachings and that it feels a moral necessity to stop gay marriage, but shouldn't it teach the members and leave it to them to decide/vote?

Also, I agree with some of the previous comments that supporting one man/one woman doesn't change polygamy as an eternal principle; we are practicing that now and I don't really anticipate that changing so long as the United States is in force. I think the church has an interesting relationship with polygamy in that it is an eternal principle and will, at least in the eternities be practiced, it comes and goes according to God's wishes and when it is contrary to His wishes, it is absolutely verbotten.

Nick Literski said...

It turns out I spoke too soon, and Gallup has just released 2008 numbers. For the first time, there's an even split on the subject of homosexual relations. 48% of those Americans polled said that homosexual relations were morally acceptable, and 48% said that they were morally unacceptable. The shift for this past year is in line with the trend I pointed out earlier.

Allen said...

Many LDS in Utah believe that government should be used to enforce the standards of the Church. I expect there are LDS outside of Utah who believe that, too, but I've lived in Maryland, Arizona, and Massachusetts for most of my adult life and never noticed that attitude in the LDS I knew. I noticed that attitude as soon as I moved to Utah.