Let's be clear that the Mormon church did a lot to take away the rights of gays by pumping up th ante on Prop 8. Gays in California cannot legally marry at this time,but they did for a few months. It is a good thing that the church is supportive on this ordinance, but be careful with the reasonings why. Prop 8 did more to hurt the Mormon church than help. This is a political move to soften the image the church wants the world to behold with the restored gospel. This is not about principles.

Baron writes:

"Not having the ability to enter into an officially recognized same-sex relationship? Well, who's not equal to who, here? Sorry, this is NOT a violation of equal rights, because there isn't a distinction being made between those who are gay and those who aren't.

Current federal statutes involving marriage allow each individual to marry one person of the opposite gender who is 18 or older (lower with parental permission), not directly related to you and not currently married to anyone else. And a person's 'rights' involving who they can marry and who they can't does not change based on sexual orientation--someone outs himself as gay tomorrow, and their marriage options remain exactly the same."

That's a conceptually coherent argument. However, I'm not sure that you really want to go there. The reason is, this was the exact line of reasoning used to defend interracial marriage bans.

That is: There's no distinction being made. Blacks and whites are both banned from marrying out of their race. We're not saying that Blacks can't marry, just that they can't marry certain types of other people (whites). The statute tells both groups: "You may marry one person, over 18, unrelated, of the same race." Both groups are treated equally, and therefore no Equal Protection Clause violation. Whether you are Black or white, the same neutral law applies to you neutrally.

It can be a conceptually coherent argument, depending on one's views of the definitions of words like equality. However, the Supreme Court struck these laws down in Loving v Virginia, finding that even a facially neutral statute like that was an infringement on the right to marry.

Indeed, an earlier case, Pace v. Alabama (which was overturned by Loving v. Virginia) ruled just that way. Laws banning interracial sex were not a violation of the EQP clause, because they applied equally to whites and to Blacks.

From Loving v. Virginia:

Setting out the state's argument:

"the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element [388 U.S. 1, 8] as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race."

"The State finds support for its "equal application" theory in the decision of the Court in Pace v. Alabama, 106 U.S. 583 (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same."

Rejecting this view:

"There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. 11 We have consistently denied [388 U.S. 1, 12] the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. 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. "

From Loving v. Virginia:

Setting out the state's argument:

"the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element [388 U.S. 1, 8] as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race."

"The State finds support for its "equal application" theory in the decision of the Court in Pace v. Alabama, 106 U.S. 583 (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same."

Rejecting this view:

"There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. 11 We have consistently denied [388 U.S. 1, 12] the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. 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. "

See http://bit.ly/4sMbmG

Let's be clear that the Mormon church did a lot to take away the rights of gays by pumping up th ante on Prop 8. Gays in California cannot legally marry at this time,but they did for a few months.

And let's be extra clear: gays have had the ability to enter into domestic partnerships in California since 2005 that are equal to marriage in all but name...and still can today. A more accurate summation would be that they were able to call their officially recognized relationship a 'marriage' for three months (and note that all of those marriages were grandfathered in after Prop 8 passed and are still legal) whereas now they can't.

If marriage is one of the "basic civil rights of man", then there's no reason to outlaw polygamy, right? If it is against the Constitution to restrict marital options by race or by gender, then why by marital status (whether one or both partners are already registered in marriage to someone else)?

The answer is: it's arbitrary. "Rights" and "equality" are subject to personal interpretation. The logic in Pace v. Alabama makes perfect sense...and is arbitrary. The logic overturning it in Loving v Virginia makes perfect sense, and is also arbitrary. Do men and women have the right to marry absolutely anyone they want or is the government allowed to restrict official recognition of relationships due to various criteria? Why are some restrictions on marriage allowable and others not? It's arbitrary.

The point is, is that being barred from a job or an apartment due to sexual orientation is a clear civil rights issue. Gay marriage is not a 'clear' issue of civil rights no matter how you spin it, depending entirely on personal interpretation of what it means to be free to marry. Whether gay marriage becomes commonplace in society or not, it is still a fundamentally different issue than discriminating against individuals due to their sexual orientation, and the Church's new policy reflects that fact.

You are very ignorant. Domestic partnerships are not equal to marriage. That is why gays need to legally get married so they can have the same rights.

Domestic partnerships are not equal to marriage.

Evidence? Examples? As this very site discussed last year, in California there are exactly nine differences between a domestic partnership and a marriage--seven are related to filing, and the other two are: you have to be 18 to enter into a domestic partnership (while you can get married before you're 18), and you have to be living together. If you think it's a violation of civil rights that a 17-year-old gay couple has to wait until they're 18 to join in an official relationship...well, I don't know what to say. Do you know many 17-year-olds of any orientation who are mentally and emotionally prepared for marriage?

In Vermont, there is literally no difference between a marriage and a civil union. Just the name. So, Javelin, I'm going to leave the burden of proof on you: why are domestic partnerships not equivalent to marriage, other than in name? Also, should polygamy be legal? If not, why not?

Just to show how arbitrary the definition of equality and rights can be:

Supposition: Marijuana being illegal is a violation of marijuana smokers' equal rights.

Evidence: Tobacco smokers can smoke their preferred drug legally, while marijuana smokers cannot. That's unfair, and a clear violation of marijuana smokers' equal rights.

Counter-argument: But...the laws regarding smoking are applied equally to all people. Tobacco is legal for everyone, regardless of smoking preference. Marijuana is illegal for everyone, regardless of preference. Everyone is treated equally under the law. Marijuana smokers could smoke tobacco legally if they wanted to. If they don't, that's their choice. Their right to smoke tobacco still exists. (This, of course, is the exact Pace v. Alabama logic...)

Counter-counter-argument: The fact that the law is applied equally to all people is irrelevant because it disproportionately affects marijuana smokers more than tobacco smokers. It is a 'basic civil right' (arbitrarily defined) to be able to smoke whatever you want. If tobacco smokers can smoke legally, marijuana smokers should be able to as well--otherwise it is a violation of the Fourteenth Amendment and the Equal Protection Clause. (Loving v. Virginia argument)

So, now we've "proven" that marijuana should be legal using the same equal rights argument. It's arbitrary. You can use this logic chain to prove just about anything is a violation of someone's civil rights. If someone wants to do something and the law says they can't, it's easy to phrase things in terms of "equal rights" if court justices are inclined to do so. Is "equality" relative?

I've used just this argument from the definition of "equality" in discussion with proponents of gay marriage, and their responses are two:

1) The "equality" they seek is "a straight people can marry whoever they want; gay people should too." When I pointed out that whether a status is desired is not really a legally recognizable category, they harumphed. (I think they called me ignorant, too.)

2) Several said that what they really wanted was for the state to get out of the marriage business altogether. This wasn't a case of "Call 'em all civil unions, let the churches call 'em marriages if they want"; these people honestly wanted all legal ramifications of the union of two adults to be erased. A "dog in the manger" response? Perhaps. But I found this standpoint to be so much more dangerous to society than the "marriage equality" movement; they honestly did not/would not understand the state's (as the agent for the society's) "compelling interest" (thank you, Supreme Court, for that nebulous phrase) in promoting a stable relationship and environment for the raising of children.

(Please note that nowhere do I claim that all, most, or any significant percentage of gay marriage activists "really" want the dissolution of the marital status or anything like unto it. I just know that I've gotten that response from multiple people.)

The church got it exactly backwards from the point of view of a property rights advocate.

The church got it exactly backwards from the point of view of a property rights advocate.

How so?

On the DP equivalency issue:

-It's true that in jurisdictions like California, registered domestic partners have exactly or nearly exactly the same rights as married persons.

-It's also true that in some jurisdictions, the rights of married persons are greater than other options like civil union or domestic partnership.

-But the big issue is that state law marriage will not give same-sex couples the same rights, because of DOMA. So in California, both pre- and post- Prop 8, both pre- and post- Marriage Cases, same sex couples are not recognized by federal law. This doesn't change if state law on marriage changes. DOMA explicitly says that the feds will not recognize same-sex couples.

Very ignorant for anyone to think that domestic partnersips are equal to marriage. It's silly to keep making this bogus argument. Ask any gay couple in California, who is now legally married, what the difference is. They will say Night and Day!

No straight married couple is willing to give up their rights from marriage for any rights from domestic partnerships. As soon as that were to happen they will be asking questions about what changes will occur.

Why the heck should we want polygamy to be legal anyway?

Fundamentalist generally don't have a desire to legalize polygamy. We just don't want to face prison time for the religious covenants we make. I can make babies with as many women as I want, without the fear of felony prosecution, but if I make a religious covenant with those women to seal us together, then the state puts me in prison. It's the covenant that makes me a felon.

I wish I had the rights of a homosexual. It must be nice to no longer face legal prosecution for your lifestyle.

Being gay is not a lifestyle. Being a polygamist is definitely a lifestyle. The government cannot put you in prison for marrying more than one women since the other marriages are not considered legal. Instead, they will go after you if you sleep with a child. My advice is to sleep with adult women.

Javelin,

That's not true. Polygamy is very much illegal. What you say may be true in states without common law marriage, but in Utah, they will recognize a non-legal marriage, using the common law statutes, for the sake of prosecution.

By the way, I know hundreds of plural wives, and not one of them was married below the age of consent. Underage marriages is a red herring in the polygamy debate. Underage marriage is also not a rarity in the monogamist world, so I don't see where you're going with that, other than showing the hypocrisy in going after a few polygamist for doing what the monogamist do every single day. Look up how many underage marriages there are in this country.

Even in groups like the FLDS, who have practiced underage marriage, their teen pregnancy statistics are lower than those in monogamist society. An interesting fact that came from the FLDS raid in Texas.

This is the same type of argument that people have used against gays. They'll point to the few bad apples to try to tarnish the whole. LDS people are also not immune from the tactics you employ. I could easily condemn you for belonging to a church that published an article in the Ensign, by a man, Oleg Barabash, convicted of exposing himself to a 13 year old boy. Do you think I can find any more instances of LDS people, and their leaders doing horrible things? LOL!

Javelin,

I am a law professor in California, and I know many gay couples in California. I agree that there are important emotional and symbolic aspects of marriage which are not included in domestic partnership. However, as I stated above, the *legal* rights are identical. This is set out very clearly in the statute.

California Family Code 297.5 reads:

297.5. (a) Registered domestic partners shall have the same rights,
protections, and benefits, and shall be subject to the same
responsibilities, obligations, and duties under law, whether they
derive from statutes, administrative regulations, court rules,
government policies, common law, or any other provisions or sources
of law, as are granted to and imposed upon spouses.

(b) Former registered domestic partners shall have the same
rights, protections, and benefits, and shall be subject to the same
responsibilities, obligations, and duties under law, whether they
derive from statutes, administrative regulations, court rules,
government policies, common law, or any other provisions or sources
of law, as are granted to and imposed upon former spouses.

(c) A surviving registered domestic partner, following the death
of the other partner, shall have the same rights, protections, and
benefits, and shall be subject to the same responsibilities,
obligations, and duties under law, whether they derive from statutes,
administrative regulations, court rules, government policies, common
law, or any other provisions or sources of law, as are granted to
and imposed upon a widow or a widower.

(d) The rights and obligations of registered domestic partners
with respect to a child of either of them shall be the same as those
of spouses. The rights and obligations of former or surviving
registered domestic partners with respect to a child of either of
them shall be the same as those of former or surviving spouses.

(e) To the extent that provisions of California law adopt, refer
to, or rely upon, provisions of federal law in a way that otherwise
would cause registered domestic partners to be treated differently
than spouses, registered domestic partners shall be treated by
California law as if federal law recognized a domestic partnership in
the same manner as California law.

(f) Registered domestic partners shall have the same rights
regarding nondiscrimination as those provided to spouses.

(g) No public agency in this state may discriminate against any
person or couple on the ground that the person is a registered
domestic partner rather than a spouse or that the couple are
registered domestic partners rather than spouses, except that nothing
in this section applies to modify eligibility for long-term care
plans pursuant to Chapter 15 (commencing with Section 21660) of Part
3 of Division 5 of Title 2 of the Government Code.

(h) This act does not preclude any state or local agency from
exercising its regulatory authority to implement statutes providing
rights to, or imposing responsibilities upon, domestic partners.

(i) This section does not amend or modify any provision of the
California Constitution or any provision of any statute that was
adopted by initiative.

(j) Where necessary to implement the rights of registered domestic
partners under this act, gender-specific terms referring to spouses
shall be construed to include domestic partners.

(k) (1) For purposes of the statutes, administrative regulations,
court rules, government policies, common law, and any other provision
or source of law governing the rights, protections, and benefits,
and the responsibilities, obligations, and duties of registered
domestic partners in this state, as effectuated by this section, with
respect to community property, mutual responsibility for debts to
third parties, the right in particular circumstances of either
partner to seek financial support from the other following the
dissolution of the partnership, and other rights and duties as
between the partners concerning ownership of property, any reference
to the date of a marriage shall be deemed to refer to the date of
registration of a domestic partnership with the state.
(2) Notwithstanding paragraph (1), for domestic partnerships
registered with the state before January 1, 2005, an agreement
between the domestic partners that the partners intend to be governed
by the requirements set forth in Sections 1600 to 1620, inclusive,
and which complies with those sections, except for the agreement's
effective date, shall be enforceable as provided by Sections 1600 to
1620, inclusive, if that agreement was fully executed and in force as
of June 30, 2005.

That's the statute.

There are a few minor wrinkles as noted earlier, such as ability to marry someone under age 18, which might affect a minimal number of domestic partners.

Javelin writes:

"The government cannot put you in prison for marrying more than one women since the other marriages are not considered legal."

This is an incorrect statement of law. The Utah code prohibits not just legal marriage, but also purporting to marry, or even cohabiting with another person while married.

The Utah Criminal Code reads, in relevant part:

Section 76-7-101. Bigamy and Defense.

(1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

See http://www.le.utah.gov/UtahCode/getCodeSection?code=76-7-101 .

In fact, the majority of prosecutions of Mormon polygamy were not for bigamy itself, but for the much more easy to prove unlawful-cohabitation. (This is set out in detail in legal historian Sarah Gordon's book, _The Mormon Question_).

Kaimi,
Don't mean to burst your bubble, but domestic partnership does not act as a substitute for marriage. Not one gay partnership could get the same rights until they were legally married. Doesn't matter what is actually written, only what is actually given.

The state of Utah would have a very hard time proving polygamy since the other marriages are not done with a valid marriage license. I expect better of you if you really are in law. You should know better.

"Kaimi,
Don't mean to burst your bubble, but domestic partnership does not act as a substitute for marriage. Not one gay partnership could get the same rights until they were legally married. Doesn't matter what is actually written, only what is actually given."

This statement is just bizarre. If you truly think that the statute has no legal effect, then you have a fundamental misunderstanding of the American legal system.

Cal Supreme Court in Marriage Cases:

"California has enacted comprehensive domestic partnership legislation under which a same-sex couple may enter into a legal relationship that affords the couple virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple."

"Thus, in sum, the current California statutory provisions generally afford same-sex couples the opportunity to enter into a domestic partnership and thereby obtain virtually all of the benefits and responsibilities afforded by California law to married opposite-sex couples."

and extensive further discussion in that court opinion

(at http://online.ceb.com/calcases/C4/43C4t757.htm ).

Lambda Legal (the gay-rights organization which brought the cases):

"As of January 1, California’s domestic partner law expanded to include nearly all rights and also the responsibilities of spouses under state law, such as complete inheritance rights, community property, joint responsibility for debt, and the right to request support from each other upon dissolution of the relationship."

As for Utah prosecutions, these absolutely happen, regardless of marriage license. That's the whole point of the unlawful cohabitation statute. This is clearly discussed in a number of texts, such as Sarah Gordon's book. It still happens, for instance, the recent State v. Holm case. (See http://docs.google.com/viewer?a=v&q=cache:IThrPaKmqS8J:caselaw.findlaw.com/data/ut/cases/supopin/Holm051606.pdf). See also the ACLU write-up about Holm and other cases: http://www.acluutah.org/bigamystatute.htm

"I expect better of you if you really are in law. You should know better."

This is a very funny statement. I teach law. I have supported my comments with actual statutes and cases. I'm very familiar with this area of law. I had a discussion today, not two hours ago, with a leading LGBT rights scholar who is a colleague; and I will be having dinner with another leading LGBT scholar in a few days.

You, on the other hand, are an internet pest who is badly misinformed about the law.

You can't get away with your bad comment. There is no truth that domestic partnership is equal to marriage. You keep quoting what is written but in no way prove what gay couples have said all along. It doesn't work. Gay couples need to be legally married in order to have the same rights as straight couples.

Again, you are very ignorant. Not one polygamist has been sentenced for multiple marriage. No, instead they have been found guilty of having sex with children. Your ignorance is very blindng in my eyes. Turn down the rhetoric.

I question your intelligence when you say you teach law. Either you are a liar or a very incompetent piece of work. Again, you should know better.

Javelin,

You said:
"you are very ignorant"
"I question your intelligence when you say you teach law."
"Your ignorance is very blindng in my eyes."
"Either you are a liar or a very incompetent piece of work."

You then go on to say, "Turn down the rhetoric."

Can you provide some examples of rhetoric in this conversation that is more outlandish than your own? Thanks! :)

Do you stil believe that the moon is made out of cheese? It is very irresponsible for anyone to say that domestic partnership is equal to marriage. That goes against what the gay community has been fighting for in the last forty years. I stand by my comments. I suggest you clean up this blog by commenting on truth instead of lies and untruth.

The moon is made of a very nice blue cheese. I like taking pieces of the moon and melting it in some hot butter or oil, and using that for dipping a nice crusty bread. Yummy.

Wow! Javelin has some real issues he needs to deal with! Javelin, buddy, I would suggest you get a good psychotherapist and discover what childhood trauma has led to your logical dysfunction.