Proposition 8 Trial Summaries

The Proposition 8 trial wrapped up this week and summaries (of sorts) have been issued by both sides. The American Foundation for Equal Rights, the organization challenging the constitutionality of Proposition 8 in Federal court, prepared their summary of the trial, where 17 witnesses were presented by the paintiffs, nine of which were "eminent experts . . . including professors from Yale, Harvard, Stanford, Columbia, Cambridge, and UCLA who are recognized internationally as leading scholars in history, economics, psychology, sociomedical science, political science, and more." Here is the outline of the plaintiff's case:

Prop. 8 does irreparable harm to Americans
• Stigma and Discrimination (Testimony of GREGORY HEREK, Ph.D., Professor of Psychology at the University of California at Davis and ILAN H. MEYER, Ph.D., Associate Professor of Clinical Sociomedical Sciences at Columbia University’s Mailman School of Public Health)
• Economic Harm (Testimony of M.V. LEE BADGETT, Ph.D., a Professor of Economics at the University of Massachusetts, Amherst and EDMUND EGAN, Ph.D., Chief Economist for the City and County of San Francisco)
• No Substitute for Marriage (Testimony of NANCY COTT, Ph.D., the Jonathan Trumbull Professor of American History at Harvard University and LETITIA ANNE PEPLAU, Ph.D. Professor of Psychology at the University of California, Los Angeles)

Marriage has shed discriminatory restrictions over time
• (Dr. Cott testifies about the history of marriage in the U.S.)

Gay men and lesbians are entitled to the full protection of the 14th Amendment
• History of Discrimination is Ongoing and Includes Prop. 8 (History Professor GEORGE CHAUNCEY, Ph.D., testifies)
• Gay Men and Lesbians Remain Politically Vulnerable (GARY M. SEGURA, Ph.D., Professor of American Politics in the Department of Political Science at Stanford University, testifies)

There is no good reason for Prop. 8’s denial of fundamental civil rights
• Procreation Not Defining Purpose of Marriage (Dr. Cott further testifies about marriage
• Equal Rights Will Not Harm Others (LETITIA ANNE PEPLAU, Ph.D. Professor of Psychology at the University of California, Los Angeles and MICHAEL LAMB, Ph.D., a Professor and Head of the Department of Social and Developmental Psychology at Cambridge University testify about child raising)

Here is video from their Jan. 27 news conference (courtesy the New York Times):



Andy Pugno, General Counsel for the Defense of Prop 8, remarks:

What may be lost in all the sensationalism of the past two and a half weeks of trial is that the burden of proof to invalidate Prop 8 lies squarely with the plaintiffs. They cannot win unless they prove that the voters were “irrational” when they chose to preserve the traditional definition of marriage in our state. Contrary to their public relations claims, the outcome of this case does not depend on whether the Prop 8 sponsors can prove that homosexual marriage will harm traditional marriage. The controlling legal issue is not whether homosexual marriage is good or bad, but rather whether the people have the right to decide what is best. The plaintiffs simply did not carry that burden.

If, by declaring that plaintiffs must establish "irrational" intent of the voters, he is referring to "Rational Basis Review," the lowest level of judicial scrutiny, then he is probably correct, as we have observed in marriage cases in other states (New York, for example); the defense need only show any governmental interest, however related, to justify a statute. Boise and Olson, however, have made a strong case that the situation involves a suspect class being denied a fundamental right, and that would typically require a higher level of scrutiny and a more "compelling" governmental interest in order to justify Proposition 8.

It will be several weeks before closing arguments will be presented to Judge Walker.

Proposition 8 on Trial

For any who may be unaware and for those interested, the Federal trial challenging California's Proposition 8 is now in its third week and resources are available on line.

Live Blogging from the court room: By those supporting Prop 8, and by those against Prop 8.

Court hearing transcripts are here.

Dramatic reenactments will be available on video here.

The Gay Agenda Redux

Meanwhile, over the weekend.... Behold the power of Prop 8.

LGBT Religious Freedom Threatens LDS Religious Freedom

In his 13 October, 2009 speech to BYU-Idaho, Elder Dallin H. Oaks warned of two forces that could have the potential to erode religious freedoms--1) increasing atheism in society and 2)the rise of LGBT civil rights. Oaks focused primarily on the latter.

The crux of his concern with gay rights seems to be expressed in this passage from the speech:

The so-called “Yogyakarta Principles,” published by an international human rights group, call for governments to assure that all persons have the right to practice their religious beliefs regardless of sexual orientation or identity. This apparently proposes that governments require church practices and their doctrines to ignore gender differences. Any such effort to have governments invade religion to override religious doctrines or practices should be resisted by all believers. [Emphasis added]

Elder Oaks suggests that "apparently" measures to eliminate discrimination and harm unto LGBT people, and in this case specifically religious freedoms for gays and lesbians, may actually advocate governments to force religions to "override religious doctrines and practices."

The Yogyakarta Principles is a set of 29 international principles launched as a global charter for gay rights in Geneva, March, 2007 and presented to the United Nations in November, 2007. The Principles, intended to address documented evidence of human and civil rights abuse of lesbian, gay, bisexual, and transgender people, was influential in a declaration on sexual orientation and gender identity presented to, but not officially adopted by the United Nations General Assembly in December, 2008.

Some of the rights declared in the Yogyakarta Principles include:

The Right to the Universal Enjoyment of Human Rights
The Rights to Equality and Non-discrimination
The Right to recognition before the law
The Right to Life
The Right to Privacy
The Right to a Fair Trial
The Right to Freedom from Torture and Cruel, Inhuman or Degrading Treatment or Punishment
The right to Work
The Right to Adequate Housing
The Right to Education
Protection from Medical Abuses
The Right to Freedom of Opinion and Expression
The Right to Freedom of Peaceful Assembly and Association
The Right to Freedom of Thought, Conscience and Religion
The Right to Freedom of Movement
The Right to participate in public life
The Right to Participate in Cultural Life

Here is the actual passage in the English version of the Yogyakarta Principles that Elder Oaks referenced:

PRINCIPLE 21. The Right to Freedom of Thought, Conscience and Religion

Everyone has the right to freedom of thought, conscience and religion, regardless of sexual orientation or gender identity. These rights may not be invoked by the State to justify laws, policies or practices which deny equal protection of the law, or discriminate, on the basis of sexual orientation or gender identity.

States shall:
a) Take all necessary legislative, administrative and other measures to ensure the right of persons, regardless of sexual orientation or gender identity, to hold and practise religious and non-religious beliefs, alone or in association with others, to be free from interference with their beliefs and to be free from coercion or the imposition of beliefs;
b) Ensure that the expression, practice and promotion of different opinions, convictions and beliefs with regard to issues of sexual orientation or gender identity is not undertaken in a manner incompatible with human rights.

The Yogyakarta Principles in general, and Principle 21 in particular, seem to be reasonable expressions of human rights that should be extended to all people. Why should they not be also extended to gays? Do LDS religious freedoms trump LGBT religious freedoms?

One critic of the Yogyakarta Principles, Piero A. Tozzi, from the Catholic Family and Human Rights Institute, sees a sinister intent in Principle 21 to undermine religious freedom (PDF):

Under the guise of affirming “the right to freedom of thought, conscience and religion” without regard to sexual orientation or gender identity, the Principles undermine religious liberty. Principle 21 explicitly states that such rights “may not be invoked by the State to justify laws, policies or practices which deny equal protection of the law, or discriminate, on the basis of sexual orientation or gender identity.” . . . What would be the practical application of such a Principle, for example, with respect to a church, mosque or synagogue whose “practice” was to refuse to perform same-sex weddings or commitment ceremonies? [Emphasis added]

Elder Oaks obviously has the same concern as the above critic, yet neither provides any substantive argument why governments would be forced to impinge upon the religious freedoms of one group over the other. Piero A. Tozzi merely throws out a question based on fear and Elder Oaks suggests that such governmental mandates "apparently" will happen. Such fearful logic provides a fragile foundation upon which to build a case for denying basic human rights to LGBT people.

The Yogyakarta Principles are aspirational visualizations of global human rights policy designed to help bring an end to "violence, harassment, discrimination, exclusion, stigmatisation and prejudice . . . directed against persons in all regions of the world because of their sexual orientation or gender identity." But it is important to note that they are not binding in any way, nor has the UN adopted any similar measures. The Catholic Family and Human Rights Institute notes that:

. . . the Principles reflect only the views of a narrow group of self-identified “experts” and are not binding in international law: The Principles have not been negotiated nor agreed to by member states of the United Nations – indeed, not a single UN human rights treaty mentions sexual orientation and repeated attempts to pass resolutions promoting broad homosexual rights has been repeatedly rejected by UN member states. Insofar as they represent an attempt by activists to present an aspirational, radical social policy vision as a binding norm, however, the Principles merit closer scrutiny.

Is this aspirational vision of "freedom of thought, conscience and religion, regardless of sexual orientation or gender identity" the frightening boogyman that precipitated the LDS involvement in Proposition 8 and which may ultimately destroy our collective religious liberty?

Bishop Gene Robinson's Prayer

Here is the text of the prayer given by Episcopal Bishop Gene Robinson at the Lincoln Memorial for the opening inaugural event. I think it is just perfect.


A Prayer for the Nation and Our Next President, Barack Obama

By The Rt. Rev. V. Gene Robinson, Episcopal Bishop of New Hampshire

Opening Inaugural Event
Lincoln Memorial, Washington, DC
January 18, 2009

Welcome to Washington! The fun is about to begin, but first, please join me in pausing for a moment, to ask God’s blessing upon our nation and our next president.

O God of our many understandings, we pray that you will…

Bless us with tears – for a world in which over a billion people exist on less than a dollar a day, where young women from many lands are beaten and raped for wanting an education, and thousands die daily from malnutrition, malaria, and AIDS.

Bless us with anger – at discrimination, at home and abroad, against refugees and immigrants, women, people of color, gay, lesbian, bisexual and transgender people.

Bless us with discomfort – at the easy, simplistic “answers” we’ve preferred to hear from our politicians, instead of the truth, about ourselves and the world, which we need to face if we are going to rise to the challenges of the future.

Bless us with patience – and the knowledge that none of what ails us will be “fixed” anytime soon, and the understanding that our new president is a human being, not a messiah.

Bless us with humility – open to understanding that our own needs must always be balanced with those of the world.

Bless us with freedom from mere tolerance – replacing it with a genuine respect and warm embrace of our differences, and an understanding that in our diversity, we are stronger.

Bless us with compassion and generosity – remembering that every religion’s God judges us by the way we care for the most vulnerable in the human community, whether across town or across the world.

And God, we give you thanks for your child Barack, as he assumes the office of President of the United States.

Give him wisdom beyond his years, and inspire him with Lincoln’s reconciling leadership style, President Kennedy’s ability to enlist our best efforts, and Dr. King’s dream of a nation for ALL the people.

Give him a quiet heart, for our Ship of State needs a steady, calm captain in these times.

Give him stirring words, for we will need to be inspired and motivated to make the personal and common sacrifices necessary to facing the challenges ahead.

Make him color-blind, reminding him of his own words that under his leadership, there will be neither red nor blue states, but the United States.

Help him remember his own oppression as a minority, drawing on that experience of discrimination, that he might seek to change the lives of those who are still its victims.

Give him the strength to find family time and privacy, and help him remember that even though he is president, a father only gets one shot at his daughters’ childhoods.

And please, God, keep him safe. We know we ask too much of our presidents, and we’re asking FAR too much of this one. We know the risk he and his wife are taking for all of us, and we implore you, O good and great God, to keep him safe. Hold him in the palm of your hand – that he might do the work we have called him to do, that he might find joy in this impossible calling, and that in the end, he might lead us as a nation to a place of integrity, prosperity and peace.

AMEN.

The 1968 Revolution You Never Heard Of

In a Los Angeles Times opinion piece, Nancy Polikoff, law professor at American University and author of "Beyond (Straight and Gay) Marriage: Valuing All Families under the Law," discusses the impact of a little-known U.S. Supreme Court ruling from 1968. She calls it the "1968 revolution you never heard of." In the case, the court "repudiated centuries of settled law by granting constitutional recognition and protection to a previously outcast group: children born outside of marriage and their parents."

The case had to do with the rights of parents and children in unwed unions.

Under common law, a child born outside marriage used to be fillius nullius, the child of no one. In the Middle Ages, it was even a lesser crime to kill a person who had been born to an unmarried woman. In the U.S., well into the 1960s, such a child's birth certificate might be stamped "bastard."

The State of Louisiana maintained to the court that it was "not trying to punish or discriminate against anyone":

Louisiana's purposes ... are positive ones: the encouragement of marriage as one of the most important institutions known to law, the preservation of the legitimate family as the preferred environment for socializing the child. ... Since marriage as an institution is fundamental to our existence as a free nation, it is the duty of ... Louisiana to encourage it. One method of encouraging marriage is granting greater rights to legitimate offspring."

Polikoff notes that the Supreme Court rejected that reasoning and refused to penalize the unwed parents or the children born out of wedlock:

Encouraging marriage and expressing disapproval of nonmarital sex were no longer constitutionally sufficient reasons to deny equal rights to children or to their parents.

Citing last week's California Supreme Court ruling allowing same-sex couples to marry, Polikoff, remarks that those who argue against rights for non-traditional families "may assert that they do not intend to punish or discriminate but simply want to promote marriage. It's an argument that rings as hollow in 2008 as it did in 1968."

From a Latter-day Saint point of view, is it better for families to suffer financially and emotionally so as to uphold the LDS doctrine of sexual purity, or should we be more concerned with the welfare of the individual families themselves? Did the U.S. Supreme Court in 1968 contribute to the disintegration of the Family?