The Legend of Jesse Barnes

We just had a missionary in my ward come back from Romania. I told him that I had three friends that served in Romania and loved it (Jesse Barnes, Peter Williams, and Tyson Wiser). He said, "That Barnes name sounds familiar." Clearly, Jesse's work in Romania has become mission legend.

Separate But Equal?

Christopher and others have expressed the following points (if I understood correctly)
1. Homosexuals shouldn't be denied governmental benefits based on sexual orientation.
2. Marriage is only a religious institution
3. There is no "right to marry"
4. The government (by amendment) should define marriage as between a man and a woman.

I feel like I'm missing something because these series of statement have some pretty important contradictions. If marriage is a religious institution, then why should the government define the terms under which marriage, a religious institution, is allowable. Why do I need government to tell me who can get married and who can't?

If government starts getting involved in the religious institution department, then could government also define how we should baptize people? In my mind, the only reason to ask the government to define marriage as between a man and woman is to deny governmental benefits based on sexual orientation. The idea of separate (in this case, marriage vs. partnerships) but equal has already been tried in this country. Now, if you think there should be some rights denied, such as adoption, I can agree with the logic of defining marriage, but I don't know how you justify it from a legal point of view.

The Prophet, Policy and Principle

I happen to side with Jesse "The Legend" Barnes on this one. (though his reasons may differ from mine)

This is a matter of policy rather than a principle. The principle is marriage should be defined as between a man and a woman. Marriage is defined in the Proclamation, and I fully support that definition. Another principle may be publicly supporting the family and gospel in the community. But the policy, suggested by the prophet, is to support an amendment defining marriage. A poor analogy is family home evening. The principle is to teach your children the gospel and have a regular habit of family time. The policy is to have it on Monday night. The church has set that time apart. However, if a family has their FHE on a Tuesday or Sunday, I don't think this is wrong in any way. I think you can still agree with and in many cases follow the principle without following the policy.

I realize that I am treading on thin ice trying to be a judge over what is principle and what is policy. And maybe the real principle is one of obedience, in which case my whole argument is bunk (but I've written to much to stop now).

I do think it is important not to confuse policy with principle. If you do, then, for example, you may get thrown for a loop every time the temple ordinances change. I often see members get upset when things aren't done in the way that they are used to (if a convert says a prayer or testimony differently, if someone doesn't dress a certain way, etc.). The church has a LOT of policies that help make the church fairly standard wherever we move, and I appreciate that. But given how different the church is today form the early days, most of the standardized church service is not principle.

The Original Living Constitution

There are a number of issues in Constitutional Law, as Christopher said, where a judge must decide between competing interests, such as federal versus state jurisdiction, private versus public interests, etc. In most of these cases, it is part of the Supreme courts duties to find a balance. The first amendment clearly protects the freedom of speech, but the courts have had to decide exactly what free speech is allowed. This can be particularly tricky when it comes to things like pornography. What should be allowed on television and what shouldn't? This is an area where the modern culture and community, as Scott suggested, very much play a part in what is allowed. The Supreme Court has even said that limits in this area depend on what a jury of peers in a particular area would find offensive, which might vary from one part of the country to another.

Now, I find myself more in the originalist camp, in that I don't think judges should add in rights to the Constitution that aren't there. Rex Lee (I know nothing about Constitutional Law besides what I learned from him.) suggested "substantive due process" decisions and the abortion ruling, based on a right to privacy, may be examples of this. However, there are certainly cases where the judges' interpretation of the Constitution is based on their own sense of morality and the community. And in these situations, whatever the Supreme Court decides becomes, as Karl said, the right decision. I found it interesting that besides the cases mentioned above, Rex Lee never said a decision was liberal or conservative. It was just the ruling of the court.

The First Presidency: The Supreme Court of the Mormon Church

I think the discussion of right and wrong court decisions parallels nicely with a discussion of right and wrong church policies. In my crazy late night analogy, the scriptures are like the Constitution and Joseph Smith the founding father and the First Presidency is the Supreme Court. Is any decision by the first presidency wrong? What about the practice of not letting blacks have the priesthood? Now, that it has been "reversed" is it safe to say that it was wrong before? Or is it like the Dred Scott argument that has been made here that though it seems wrong now that it may have been right at the time?

Similar to the courts, the first presidency has made many decisions that one could argue are influenced by modern culture. For example, I am very grateful that we could wear shorts while we were at BYU. And, while I don't necessarily agree with it, some would argue that the culture of the time affected the reversals on polygamy and blacks. A strict originalist in Mormon terms would I guess be a fundamentalist, which of course none of us are. And the opposite extreme would be the RLDS church which hardly believes in the Book of Mormon any more. I guess I'm somewhere in the middle with both the judiciary and the church.