Musings on the Judiciary, Gay Rights, Principles and Practices, and the Church

I have thoroughly enjoyed reading various posts on the judiciary and contitutional interpretation and the gay marriage question. Each of your insights are intriguing and demonstrate a scintillating level of intellectual acumen. I offer a few thoughts...


Right vs. Wrong in Judicial Opinions

In reading Scott's and Karl's missives about whether the Supreme Court can ever decide a case wrongly, I find myself in agreement with Karl. Scott set forth a common argument that the Dred Scott and Plessy cases were "wrongly" decided. However, Jesse's point -- wrong, by whose standards -- compellingly reveals the inherent dangers in untethering constitutional interpretation from some sort of firmly established moorings. Originalism or contextualism thus serves a vital role in constitutional interpretation because it provides such moorings. This is not to say, however, that we should be completely locked into 18th century thought when interpreting the constitution. As I stated in a previous post, there must be a balance sought between originalism and viewing the constitution as a living document that continues to have vitality nearly 250 years after its adoption. Moreover, we must recognize that the document itself provides for a means to amend it. Thus, if the high court were to stick with pure originalism, and such interpretation ran afoul of currently accepted social norms, the People are empowered to amend the Constitution and clarify or even change its meaning.


Such, ultimately occured with the infamous Dred Scott case. In that 1857 decision, Dred Scott, a slave and direct descendant of African blood, brought an action at law in federal court against his slave owner for his freedom. It must be recognized that unlike state courts, federal courts are courts of limited jurisidiction and that such courts can only assert jurisidiction as authorized under Article III of the Constitution. In this case, in order to establish federal jurisdiction, the plaintiff, Dred Scott, asserted he was a citizen of Missouri and the defendant, Stanford, was a citizen of New York. This would then vest the federal court with what is known as "diversity" jurisdiction -- the plaintiffs and defendants being diverse to each other as citizens of different states.

The question in Dred Scott was whether he was a "citizen" within the meaning of the Constitution and could thereby bring an action at law in the federal courts against a citizen of a different state. Dred Scott had lived in different states that had abolished slavery and had enacted laws declaring former slaves to be citizens in those states. In concluding that Dred Scott was not a "citizen" of Missouri, the Supreme Court explained that at the time the Constitution was drafted, adopted, and ratified, no persons of African descent were considered to be "citizens;" instead they were "property." Of course, there were other issues at play in the Dred Scott case, including the powers of Congress to declare new territories to the Union to be free, the powers of the States to declare whether one is a citizen of the Union, etc. In addressing each of these issues, the high court appealed to the 1789 understanding of the Constitution.

The high court tacitly acknowledged how repugnant its holdings were when it wrote, "[i]t is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws..." Nevertheless, repugnant or not, the court's approach in this case, demonstrates a considerable, and perhaps even commendable, amount of judicial restraint and a recognition that the body politic rather than the judiciary is charged with the responsibility of changing the laws. Change ultimately came after the Civil War with the 13th, 14th, and 15th Amendments. These Reconstruction Amendments abolished slavery and granted citizenship with all its attendant due process and equal protection rights to the former slaves and all those who are born or naturalized in the United States.

Now, as to the notion of wrongly decided cases, Scott urges that the Dred Scott (and Plessy - a case announcing the separate but equal doctrine) decisions were patently wrong. However, this begs the question, as Jesse already poignantly pointed out, wrong by whose standards? Indisputably, the case was wrong and thus superceded, once the Reconstruction Amendments were ratified. However, at the time the Dred Scott case was decided in 1857, it certainly was not wrong by the standards of the antebellum South. The North probably would have had a different view, but the international community, which was busily engaged in empire building, likely would not have balked too terribly at the Dred Scott decision. The Framers, whose intent the high court sought to divine, also probably would reached some form of compromise (as some were for slavery and others against), such that the Dred Scott decision would have resonated with them.

Just because the holding of a case might be repugnant to some, does not automatically make it wrongly decided. For this reason, perhaps originalism is the safest method to interpret the Constitution. At the very least, by going back to the context of when the document was drafted, we are able to come up with a set of bedrock principles as a starting point for constitutional interpretation. If the resultant interpretation is too repugnant to be tenable, then amending the document is always an option. By just cavalierly stating that the meaning of the Constitution changes with the times inherently diminishes the document from standing for something, to standing for nothing.

Gay Rights and Marriage

I find the discussion on "gay rights" to be a fascinating tangent to the discussion on marriage. I think no one could rightly argue that a person should be denied the rights, privileges, and immunities bestowed by the government on the basis of sexual orientation. However, why does the foregoing inalienable truth then mean that the institution of marriage itself is a "right, privilege, or immunity" bestowed by the government? A married couple may have certain rights, privileges, or immunities bestowed upon them as a result of the marriage, but the marriage itself is not a right, privilege, or immunity. I have to agree that benfits (and burdens) of tax laws, insurance laws, intestacy laws, property laws, etc. should be extended to all people who are similarly situated. Therefore, I favor domestic partnership laws that confer the same governmental benefits granted to married persons to homosexual partners that have registered as domestic partners.

However, defining homosexual partners as "married" is not a benefit that comes from the government. Long before governments existed, marriage existed. It is a religious institution ordained by God. Consequently, we cannot speak of gay rights as including some sort of "right to marry."


The Church and its Prop. 8 Involvement in California

In a related vein, as you know, the First Presidency issued a letter to all wards in California asking members of the church to give of their time and means to promote the passage of Proposition 8, which is the proposed amendment to the California Constitution defining marriage as being only between one man and one woman. (Here is an example of amending the Constitution in light of a judicial opinion; though I disagree with the decision and some of its reasoning, it was not necessarily "wrongly" decided.)

I am curious to know what your thoughts are as to the Church's involvement in this debate. I have heard sentiments, and perhaps you share them, that the Church should not get involved in this political issue, that the Church is endangering its tax-exempt status, that the Church needs to learn where to draw the line between political questions and moral issues, etc. I have also heard Latter-day Saints question: What does it affect me? How does this issue harm my marriage? Even if gay and lesbian couples can "marry," what harm will come of that? Who am I to impose my moral views on others?

I, for one, am shocked at what I have heard. Do we sustain President Monson as a prophet, seer, and revelator, or not? If the prophet says support Prop. 8, you can bet your boots I'm supporting Prop. 8. I know President Monson is a prophet and I know that when he speaks as a prophet of God, he is distilling upon us prophetic insight. What harm can come of gay marriage? No puny mortal can possibly imagine all the potential harm. But God knows; and I thank Him for His prophet on Earth to issue a prophetic voice of warning to us.

I firmly believe that times are only going to get more divisive -- the gulf between where we stand as Latter-day Saints and where the world is headed is only going to widen. As this gulf widens, we will not be able to continue speaking in pleasant conciliatory tones without compromising our own convictions. Consequently, I am eternally grateful we have prophets, seers, and revelators, who have spoken as plainly and as clearly as they have. I am grateful for the counsel we have received to continually keep our arms open in the spirit of love and fellowship for our brothers and sisters who struggle with the inclination of same-sex attraction while maintaining our firm resolve that marriage, which is central to our Father's Plan, is nothing short of a divinely appointed relationship between a man and woman.

I am convinced that the Church will speak out on moral issues more frequently in the future as more and more of those moral issues continue to make their way onto our ballots. If the Lord's servants speak to such issues, our safest assurance is to listen and hearken.

Who are we to impose our sense of morality upon society? We are citizens of that society and have an obligation to strive to define its moral contours. Moreover, we are citizens of God's kingdom here on Earth and have covenanted to stand as witnesses of God at all times, in all things, and in all places. If we sit quietly, then we have failed.