Sunday, August 17, 2008

The Arizona Marriage Amendment -- Analysis of the California case: In re Marriage Cases,

The California Court’s approach is entirely based on an examination of an individual's due process and equal protection rights. There is no consideration of the rights of a family or even recognition of the existence of a “family” as a legal unit. This case is available in all of its 172 pages on line at

In re Marriage Cases
43 Cal.4th 757, 183 P.3d 384

This link is to the California Supreme Court version of the case, however, West Law has the reported version, but you need a subscription to West Law to view the case. The West Law version lists all of the attorneys and organizations involved in the case. I have not counted them but there are many hundreds, including international organizations and law firms across the country. The large number of attorneys involved is an indication of the amount of money being invested by both sides of this issue. This is not a minor issue, it is one of the major issues facing our religion, our society and our fundamental way of life in the United States and throughout the world.

The California Court states,

“Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification the state must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and (2) that the differential treatment not only is reasonably related to but is necessary to serve that compelling state interest. Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — the interest in retaining the traditional and well-established definition of marriage —cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest.” (emphasis added).

So in other words, you can throw out thousands of years of history and tradition merely because it isn’t compelling or necessary to preserve it. Simply because the rights of the individuals to live as they please is superior to the interests of society in preserving the institution of marriage, as it has been defined. The Court also, incorrectly concludes that “permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples. (emphasis added). While at the same time the Court is doing just that, altering the legal framework of the institution of marriage.

The issue raised by the Court is not whether there is a compelling state interest in preserving the institution of marriage, but rather treating marriage as if it were a brand name, a relationship outside of that traditionally recognized was able to use the name. The Court states, “the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.” So now we have a new constitutional right, that of “equal dignity?”

The Court states, “...the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.” In other words, the individual rights are superior to even the state legislature or the initiative process. Society has no interest greater than that of its individual members? This particular view comes right out of the Book of Mormon from the teachings of a man named Korihor. (Alma 30:17.)

And many more such things did he say unto them, telling them that there could be no atonement made for the sins of men, but every man fared in this life according to the management of the creature; therefore every man prospered according to his genius, and that every man conquered according to his strength; and whatsoever a man did was no crime.

The Court goes on to state,

“Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest.Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.”

Contrast this statement with that of the Court in the Arizona case of Moran v. Moran, 188 Ariz. 139, 933 P.2d 1207 (App. 1997):

“Nevertheless, the state is also vitally concerned with the establishment of marriages because marriage is a relationship in which "the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress." Nelson, 604 F.Supp. at 593 (quoting Maynard v. Hill, 125 U.S. 190, 211, 8 S.Ct. 723, 729, 31 L.Ed. 654 (1888)).”

In contrast, the California Court holds:

“We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians,whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”

More on this later.


  1. I'm beginning to believe the these judges are the ultimate humanists. They, like Korihor, are putting all focus on the individual, as you said. That quote of Korihor's is the exact embodiment of humanism. It sounds good on one level but then you realize what is being said. There is no room for personal responsibility, no room for social responsibility, and no room for God.

  2. I really enjoyed this post.

    All this "Supreme Court interpreting the constitution" stuff reminds me why more and more I think, next to Joseph, Brigham understood the gospel better than anyone.

    In Ezra Taft Benson's talk "14 Fundamentals in Following the Prophet" he quotes Brigham saying: "There is the written word of God to us... And when compared with the living oracles those books are nothing to me"

    Though it sounds good publically to praise the scriptures to no end, in practice, there will always be someone cleaver enough to interpret the scriptures to say whatever they want with a very convincing argument.

    I served a mission in the bible belt and I know first hand of how very smart people can come up with very convincing arguments for anything they want the scriptures to say. Only with a modern day prophet could one know what God actually thinks so I'm with Brigham completely.

    I see the same issue with the constitution. No matter how well it is written, eventually, a smart enough person is going to come along and interpret it in any way you can imagine.

    I greatly applaud attempts to define Marriage in a way that protects the family. However, I fear even if the Family Proclamation to the World became an official amendment of the US constitution it will still not be enough for the reasons stated above.

    It would be an amazing step, true, but I fear the only way to really keep the family pointed in the right direction is to follow modern Prophets.

    Missionary work anyone? (By the way, many outside the church have wonderful views of the family. But I fear any written statement or creed can and will be made to say anything unless without something like a living prophet.)

  3. Good post. In response to Joe's comment, "I fear even if the Family Proclamation to the World became an official amendment of the US constitution it will still not be enough for the reasons stated above." I agree that we always need to follow the living prophet, especially when he has spoken so clearly. On the other hand, the more clearly we write and legislate, and the more directly we attack the issues, the more difficult it will be for modern Korihor-like philosophies (for it seems to me that it is the philosophies we fight against rather than the people) to interpret correct and inspired words to their own ends. Let's make sure we get out the vote and make a difference!