Dallin H. Oaks opposes gay marriage amendment?

[Cali Coug]

This from a talk in 1992:

"The particular powers that are reserved to the states are part of the inspiration. For example, the power to make laws on personal relationships is reserved to the states. Thus, laws of marriage and family rights and duties are state laws. This would have been changed by the proposed Equal Rights Amendment (E.R.A.). When the First Presidency opposed the E.R.A., they cited the way it would have changed various legal rules having to do with the family, a result they characterized as “a moral rather than a legal issue.” 12 I would add my belief that the most fundamental legal and political objection to the proposed E.R.A. was that it would effect a significant reallocation of law-making power from the states to the federal government."

Here is the link to the church website hosting the article:

http://library.lds.org/nxt/gateway.dll?f=templates$fn=default.htm

How about Boyd K. Packer?

"Should the Equal Rights Amendment pass. those few words would be open to interpretation—not at the local or state level.

"The [Equal Rights] amendment is so undesirable because it would remove the power of interpreting the meaning of laws relating to sex discrimination from state courts and vest it in federal courts.

The way opens then to endless litigation with webs and strings and cords and ropes and bonds.

Existing laws, if properly enforced, could effect the corrections necessary.

Even some proponents of ERA have admitted that a Constitutional amendment is not really needed to achieve the desired legal reforms.

They argue, however, that its adoption represents some kind of a symbolic gesture, some overcorrection of a long neglected cause.

The more strident supporters will view it, no doubt, as symbolic support for antifamily and unisex values.

The states presently retain significant powers to regulate family relations and property rights, and some working conditions in harmony with the customs and ideals of the people in their state.

All of this would be gobbled up in the great bureaucracies of the federal government. And like Title IX, a few words intended as a protection will become a threat."


http://library.lds.org/nxt/gateway.dll?f=templates$fn=default.htm


How interesting are the parallels today?

[UtahDan]

Originally Posted by hoyacoug

How interesting are the parallels today?

I guess I'm just not seeing it hoya.

I was not old enough to be cognizant of the ERA fight when it was hot but as I understand it the opposition flowed from fear that the federal judiciary would interpret the amendment as requiring all sorts of things from the integration of single sex schools and sports teams, to women being drafted, to the admission of women into fraternities, to same sex marriage. The states rights argument contained in this is that the states are already free to do this if they want to, but not all states should HAVE TO. I believe that many states have adopted ERA like language into their constitutions which is the right solution form the states rights perspective.

The Federal Marriage Amendment does require that states not define "marriage" as being anything other than between a man and a women, however, it leaves the door wide open for states to have all sorts of other same-sex arrangements that are simply called something else. So the only real requirement on the states is a semantic one. The real teeth of the amendment are that it allows states to AVOID having to recognize the same sex marriage of another state. Of course the Defense of Marriage Act already says this but many (including me) think that this Act runs afoul of the full faith and credit clause and must ultimately be struck down.

Thus, without the amendment you have the potential that a single state's gay marriage would have the effect of foisting them on the other 49 states. Granted that is an inchoate threat at this point, but it may well be inevitable. With the amendment you do have a federally imposed sematical rule, but states remain free to deal with this issue as they see fit so long as they call ti something else. Arguably from the states rights perspective, the world WITH the amendment allows for greater state autonomy than WITHOUT it, at the end of the day.

Thoughts?

[Cali Coug]

Originally Posted by UtahDan

I guess I'm just not seeing it hoya.

I was not old enough to be cognizant of the ERA fight when it was hot but as I understand it the opposition flowed from fear that the federal judiciary would interpret the amendment as requiring all sorts of things from the integration of single sex schools and sports teams, to women being drafted, to the admission of women into fraternities, to same sex marriage. The states rights argument contained in this is that the states are already free to do this if they want to, but not all states should HAVE TO. I believe that many states have adopted ERA like language into their constitutions which is the right solution form the states rights perspective.

The Federal Marriage Amendment does require that states not define "marriage" as being anything other than between a man and a women, however, it leaves the door wide open for states to have all sorts of other same-sex arrangements that are simply called something else. So the only real requirement on the states is a semantic one. The real teeth of the amendment are that it allows states to AVOID having to recognize the same sex marriage of another state. Of course the Defense of Marriage Act already says this but many (including me) think that this Act runs afoul of the full faith and credit clause and must ultimately be struck down.

Thus, without the amendment you have the potential that a single state's gay marriage would have the effect of foisting them on the other 49 states. Granted that is an inchoate threat at this point, but it may well be inevitable. With the amendment you do have a federally imposed sematical rule, but states remain free to deal with this issue as they see fit so long as they call ti something else. Arguably from the states rights perspective, the world WITH the amendment allows for greater state autonomy than WITHOUT it, at the end of the day.

Thoughts?

All valid points, though I disagree with your analysis.

I hardly view the possibility of states being forced to recognize marriages from other states as realistic, let alone "inevitable." Marriage has always been the province of states. In fact, many states currently have statutes that prohibit some forms of marriage that are recognized by other states. For example, several states prohibit marriage to a first cousin, while others permit it. States that prohibit such marriages do not, and have not, recognized marriages of first cousins as being valid. Why would homosexual marriage be any different? Several state constitutions have already expressly prohibited homosexual marriage. The full faith and credit clause has not ever been interpreted to say anything close to what you are suggesting.

Dallin H. Oaks said it best in the quote above: The "laws of marriage and family rights and duties are state laws." This has nothing to do with whether or not states COULD be preempted by a (to date) very imaginary ruling by the Supreme Court and everything to do with saying states SHOULD NOT be preempted by a constitutional amendment in the realm of marriage.

Oaks next statement is also very appropriate here: that changing legal rules dealing with the family is "a moral rather than a legal issue." In that, I wholeheartedly agree. The responsibility of the church (and any church) is to persuade, not to legislate.

I also fail to understand the importance of this issue if, as you state, homosexuals can continue doing the EXACT same thing (getting married) as long as they change the semantics of it and call it something else. If that is, indeed, the case, exactly how is this amendment accomplishing anything to support the family?

As Boyd K. Packer noted, amending the Constitution will create "endless litigation with webs and strings and cords and ropes and bonds." This is particularly true here, where the issue is already quite divisive. Your claim that states could do what they wanted, as long as they didn't allow gay "marriage" may be correct, or it may be that civil unions could also be interpreted as violating this new amendment.

I cannot fathom why this amendment is so pressing to defending families. Homosexuality will continue just as before. Apparently supporters of this amendment have little difficulty allowing an equivalent of marriage to be extended so long as the M word is not used. And to top it all off, the supporters are coming from a traditionally states rights oriented background.

Very curious on so many levels.

[Robin]

Originally Posted by UtahDan

I guess I'm just not seeing it hoya.

I was not old enough to be cognizant of the ERA fight when it was hot but as I understand it the opposition flowed from fear that the federal judiciary would interpret the amendment as requiring all sorts of things from the integration of single sex schools and sports teams, to women being drafted, to the admission of women into fraternities, to same sex marriage. The states rights argument contained in this is that the states are already free to do this if they want to, but not all states should HAVE TO. I believe that many states have adopted ERA like language into their constitutions which is the right solution form the states rights perspective.

The Federal Marriage Amendment does require that states not define "marriage" as being anything other than between a man and a women, however, it leaves the door wide open for states to have all sorts of other same-sex arrangements that are simply called something else. So the only real requirement on the states is a semantic one. The real teeth of the amendment are that it allows states to AVOID having to recognize the same sex marriage of another state. Of course the Defense of Marriage Act already says this but many (including me) think that this Act runs afoul of the full faith and credit clause and must ultimately be struck down.

Thus, without the amendment you have the potential that a single state's gay marriage would have the effect of foisting them on the other 49 states. Granted that is an inchoate threat at this point, but it may well be inevitable. With the amendment you do have a federally imposed sematical rule, but states remain free to deal with this issue as they see fit so long as they call ti something else. Arguably from the states rights perspective, the world WITH the amendment allows for greater state autonomy than WITHOUT it, at the end of the day.

Thoughts?

Here is one thought --

If the purpose of the amendment is so other states would not have to recognize a gay marriage from Mass., then what would happen if a gay couple with a legally adopted child moved from one of the gay marriage states to a non-gay marriage state? What would be the status of their relationship to each other? To the adopted child? Would the child be at risk of being 'kidnapped by the state' in order to remove the child from the 'dangerous' gay parents?

Consider this hypothetical... a gay couple marries in Mass. One of the men had a blood child from an earlier relationship with a woman. The other gay man legally adopts the child, which is all good in Mass. The blood father dies. The other gay man is now the legal guardian of the child in Mass. The homophobic blood grandparents kidnap the child and flee to Missouri, where the man's paternity is not recognized.

Now what?

It seems like the direction of the amendment would cause a lot of chaos. Thank goodness it won't pass.

[Cali Coug]

Originally Posted by Robin

Here is one thought --

If the purpose of the amendment is so other states would not have to recognize a gay marriage from Mass., then what would happen if a gay couple with a legally adopted child moved from one of the gay marriage states to a non-gay marriage state? What would be the status of their relationship to each other? To the adopted child? Would the child be at risk of being 'kidnapped by the state' in order to remove the child from the 'dangerous' gay parents?

Consider this hypothetical... a gay couple marries in Mass. One of the men had a blood child from an earlier relationship with a woman. The other gay man legally adopts the child, which is all good in Mass. The blood father dies. The other gay man is now the legal guardian of the child in Mass. The homophobic blood grandparents kidnap the child and flee to Missouri, where the man's paternity is not recognized.

Now what?

It seems like the direction of the amendment would cause a lot of chaos. Thank goodness it won't pass.

Interesting questions, but regardless of whether the amendment passes, we will have to face those same challenges. The status quo allows states to refuse to recognize a gay marriage from another state. The adoption question is trickier. A parent's legal guardianship of a child has little relationship to the marriage of one parent to another parent. While the marriage between the two parents may not be valid, the act of adopting the child should still be (I would think).

In any event, this is the status quo (which is yet another reason I am opposed to the amendment; it is redundant).

[UtahDan]

Originally Posted by hoyacoug

All valid points, though I disagree with your analysis.

I hardly view the possibility of states being forced to recognize marriages from other states as realistic, let alone "inevitable." Marriage has always been the province of states. In fact, many states currently have statutes that prohibit some forms of marriage that are recognized by other states. For example, several states prohibit marriage to a first cousin, while others permit it. States that prohibit such marriages do not, and have not, recognized marriages of first cousins as being valid. Why would homosexual marriage be any different? Several state constitutions have already expressly prohibited homosexual marriage. The full faith and credit clause has not ever been interpreted to say anything close to what you are suggesting.

Well, what you are saying is certainly valid and I don't see the full faith and credit clause imminently going this direction either, but I do not think it is irrational to imagine it might. First cousin marriage, for example, are not strongly avocated by the left in this country (the side of the political spectrum with which most jurists identify).

While there has been nothing like it to date, there had been ben nothing like Roe v. Wade to date when a right to privacy came wandering out of the penumbra of the 4th, 5th and 14th amendments on that occassion in the single worst piece of jurisprudence since Dred Scott.

BEGIN ASIDE: For the record, I think that Roe should be overturned, that states should decide this issue for themselves, and anticipate and hope that at the end of the day it would remain legal, if restricted in most states. I simply find Roe to be the worst reasoned case I have ever read and it has only continued to exist because of the irrational and uninformed fear that overruling it would somehow make abortion illegal in this country...ASIDE OVER.

So for this reason, conservatives are right to be afraid of what unprecedented thing a liberal court may do at some future date and the amendment is a hedge against that day. Again, I agree that there is no "imminent threat" (I'm chuckling as I use that phrase, lol) but don't think that the desire to address the issue is irrational.

[RockyBalboa]

That's a pretty interesting way to twist the words and meanings of apostles to Jesus Christ.

So be it.

[UtahDan]

Originally Posted by Robin

Here is one thought --

If the purpose of the amendment is so other states would not have to recognize a gay marriage from Mass., then what would happen if a gay couple with a legally adopted child moved from one of the gay marriage states to a non-gay marriage state? What would be the status of their relationship to each other? To the adopted child? Would the child be at risk of being 'kidnapped by the state' in order to remove the child from the 'dangerous' gay parents?

Consider this hypothetical... a gay couple marries in Mass. One of the men had a blood child from an earlier relationship with a woman. The other gay man legally adopts the child, which is all good in Mass. The blood father dies. The other gay man is now the legal guardian of the child in Mass. The homophobic blood grandparents kidnap the child and flee to Missouri, where the man's paternity is not recognized.

Now what?

It seems like the direction of the amendment would cause a lot of chaos. Thank goodness it won't pass.

Robin, I don't actually think this would be a problem. As I understand it, an adoption in one state must be honored in all others. The status of the adoptive parent as a party to a marriage not recognized in a different jurisdiction would have no effect on the fact that the adoption is binding.

Under your hypothetical, the grandparents would be guilty of kidnapping. Now it is ALWAYS true that custody can be challenged by almost anyone and an adoptive parent could be deprived of their child if a court determined it was in that child's best interests, but that is the same footing that biological parents are on.

Now one issue that recently played out here in VA is what happens when a child is born during a civil union but is only the biological child of one party to that union. Such was the case of a child born in Vermont where, as I understand it, the non-bio parent had significant rights as well as a possible obligation to pay child support, but bio-parent wanted her "spouse" out of both of their lives. Her solution was to move to Virginia. Non-bio parent then comes to a Virginia court and asks it to enforce the visitation rights she would have in Vermont and the Virginia court declines to do so, finding that she is not a parent at all under VA law and has no standing.

My take is that same sex couples can insulate against this by making sure that non-bio parent adopts the child. This may not have changed the outcome in the case I just cited, because the court could still have found that no visitation was in the child's best interests, but again, this is the same footing that biological parents find themselves on every day in custody fights.

I just don't think that the amendment we are discussing would control your hypothetical.

[Cali Coug]

Originally Posted by RockyBalboa

That's a pretty interesting way to twist the words and meanings of apostles to Jesus Christ.

So be it.

I assume you are referring to my post. I am not sure how that is "twisting" their words as much as it is pointing out the inconsistency of their words.

I cannot understand the importance of this amendment to the church. I also can't get past the irony that Elder Nelson is the one lobbying for the amendment, having just remarried for the second time for time and all eternity (effectively making him a polygamist).

Polygamy had a role in the ancient church. It had a role in the early restored church. It clearly has a role after this life. So what eternal principle makes it immoral in this life?

Don't get me wrong, I most certainly would not favor returning to polygamy. Far, Far, Far from it. I would, however, enjoy a bit of clarity here where I am finding only contradictions and hypocrisy.

[Cali Coug]

Originally Posted by UtahDan

Well, what you are saying is certainly valid and I don't see the full faith and credit clause imminently going this direction either, but I do not think it is irrational to imagine it might. First cousin marriage, for example, are not strongly avocated by the left in this country (the side of the political spectrum with which most jurists identify).

While there has been nothing like it to date, there had been ben nothing like Roe v. Wade to date when a right to privacy came wandering out of the penumbra of the 4th, 5th and 14th amendments on that occassion in the single worst piece of jurisprudence since Dred Scott.

BEGIN ASIDE: For the record, I think that Roe should be overturned, that states should decide this issue for themselves, and anticipate and hope that at the end of the day it would remain legal, if restricted in most states. I simply find Roe to be the worst reasoned case I have ever read and it has only continued to exist because of the irrational and uninformed fear that overruling it would somehow make abortion illegal in this country...ASIDE OVER.

So for this reason, conservatives are right to be afraid of what unprecedented thing a liberal court may do at some future date and the amendment is a hedge against that day. Again, I agree that there is no "imminent threat" (I'm chuckling as I use that phrase, lol) but don't think that the desire to address the issue is irrational.

I agree it isn't entirely irrational to think jurisprudence "might" head in the direction of applying the full faith and credit clause to marriages, though I think that day is extremely far away if ever. I do think it is entirely irrational to begin amending the Constitution to state things that are currently abundantly clear but COULD change at some point in the future. Why stop with this amendment? We could go really crazy and adopt an infinite amount of amendments to prevent the Court from potentially doing something different in the future.

Of course, with each amendment comes more unpredictability as to how the amendment will be interpreted, but I suppose more amendments could solve potential problems there too.