>-----Original Message-----
>From: Sander J. Rabinowitz [mailto:[EMAIL PROTECTED]
>Sent: Thursday, March 11, 2004 12:00 PM
>Subject: [ZION] SSM, was: (No subject)
>Ron Scott wrote:
>> >From: Sander J. Rabinowitz [mailto:[EMAIL PROTECTED]
>> >Ron Scott wrote:
>> >
>> >> I understand that opponents of gay marriage are turning the
>> >> battle for a proposed Constitutional Amendment into a
>> >referendum
>> >> on sexual practices. This is precisely why I think
>> >the initiative
>> >> will fail and probably fail convincingly.  The
>problem is that
>> >> long ago statutes prohibiting various sexual acts
>> >were repealed.
>> >
>> >I don't know for myself that opponents are taking exclusively
>> >that approach, although I have no doubt that a
>sizeable number
>> >might.  Similarly, I would imagine that many others have
>> >taken a purely religious approach, in the context of
>SSM being
>> >against the laws of God. <
>> I understand.  However, I think the homosexual acts are
>> [against] the laws of God, not SS unions.  I realize I'm
>> splitting hairs. But, in order to be consistent I
>think we need
>> to begin at the beginning: how should government regard
>> homosexual acts? Resolve that one and, I think, it takes care
>> of the other.  If the laws remain as they are, I'm afraid
>> that opposition to SS unions don't have a legal leg to stand
>> on.
>But I still think are a couple different angles to look at this.
>One points solely to the biological element, as you have, while
>the other points to marriages in a general sense, regardless of
>the biological element.
>For example, it often occurs that one party, typically a female,
>will come to the U.S. to marry an American male for the sole
>purpose of obtaining legal immigration status.  Assuming they
>are able to get past USCIS (formerly INS) scrutiny, nothing
>more happens in the relationship, and the parties may even
>live separately.  The key elements: 1) The relationship is not
>SSM.  2) Nothing happens biologically.  3) Yet Congress, as a
>matter of policy, has empowered USCIS to determine whether a
>given marriage is "bona fide/in good faith" for immigration
>purposes, and to deport someone whose marriage doesn't meet
>the statutory criteria, even if it was otherwise legal and
>Second example: A marries B for companionship alone, or perhaps
>only so that B can have access to A's benefits.  Here, so
>long as the marriage is solumnized correctly, the law doesn't
>look into why the marriage took place.  You actually pointed
>to an SSM version of this in one of earlier posts.  In either
>event, there is not a biological element.
>Third example: In a plural marriage, A marries B for traditional
>reasons, then marries C because she was widowed and would
>otherwise live on her own. Again, no biological element as to
>C, and in fact, it may even be compatible with D&C 132 (at least
>prior to Official Declaration #1).  Yet the marriage to B is
>legal and the marriage to C is not...in fact, polygamy is
>singled out in the immigration laws as grounds for
>denying someone citizenship or permanent residency, and perhaps
>may even be grounds for deportation.  <

So are your examples above arguments for or against same sex
unions?  As you know, I believe the government has no role to
play in defining marriage.  It does have a role to play in
defining legal domestic unions.  In my mind, the government(s)
could define legal domestic unions in various ways and subject
them to several legal tests.  It seems to me the primary driver
for these legal "unions" is economic.  The reason the government
should define them is to make good on its responsibility to treat
all equally under law.

>But besides all this, if SS unions were themselves compatible
>with the laws of God, the question to ask is: Would a Bishop be
>allowed to solemnize an SSM, provided the parties vowed to
>refrain from the biological element, in addition to all other
>vows?  I think the answer here would be no.  First, D&C 132
>expressly defines marriage between a man and a woman (and
>temple marriage as being between a man and one or more women).
>Second, a similar definition can be found in Genesis 2:21-24.<

I agree.  As noted above, the each church should determine for
itself what kinds of unions will be recognized, blessed by the
church.  Conversely, the action of the church need not have legal

>So for all of these reasons, it would be impossible to evaluate
>the validity of a given marriage solely on the basis of whether
>a biological act occurs, or is reasonably capable of occurring.<

I agree.

>> >But to me it all comes back to a point I made a while back,
>> >and if I sound like a broken record, I apologize.  To me,
>> >we're not talking about merely a legal or a social
>> >privilege, or whether a given relationship is compatible
>> >with nature, although undoubtedly there will continue to be
>> >those discussions.  Rather, we're talking about a core value
>> >that was supposed to transcend individual, religious,
>> >and ethnic views, and gets to the root of our identity as
>> >a nation and a society.<
>> I've heard that argument and I think we all did make similar
>> assumptions.  The problem is we didn't articulate it
>quite this
>> way when the Constitution was written, and, in
>essence we haven't
>> done so for 200 plus years.
>I may cede that point.  The Founding Fathers operated by the
>best light that they had...they didn't necessarily have the
>light Joseph Smith had, and they certainly did not have the
>Priesthood.  The same could be said for most leaders and
>citizens to the present day. <

True enough.  But we all recognize the belief that the
Constitution was a prescient document.  That is, it's remarkably
broad language seems to have anticipated situations just like the
SSM issue.  That's what divinely inspired documents do.
Importantly, this divinely inspired document provided the guiding
principles for resolving disputes that may arise.

>But the trend appears to be for society to be heading away from
>the light than it had previously, and in that sense, we have
>to figure out, through legal and Constitutional means, how to
>get closer to the ideal, or at least return to where we had

"Heading away" is, of course, a matter of opinion.  I respect
that opinion.  And, yes, this is one difference of opinion that
was custom-made for the courts.  Pressing for an amendment that
seems to fly in the face of those guiding principles is, in my
opinion, counterproductive in that it seeks to undermine key
constitutional guarantees.
>> However, we did clearly define that
>> citizens are guaranteed equal protection under the
>law.  And, we
>> established a process by which such interpretive
>matters may be
>> addressed. The process is judicial review. To
>prevail, the case
>> must pass basic constitutional tests.
>But I would submit that what is happening in San Francisco,
>Seattle, and elsewhere, involves anything BUT judicial review.
>Arguably, the situation in Massachusetts does involve
>judicial review.  But that cannot be the final word on the
>matter, even there, since states are now being asked to
>ratify marriages its citizens vehemently disapprove of.
>All it indicates is that the law has suddenly become very
>unsettled at a national level...which is precisely the
>impetus for the SSM debate in the first place. <

I agree re: Seattle, San Francisco.  However, I will note that
the San Francisco "revolt" arguably was provoked by the state
passing definition of marriage statutes that arguably are
crosswise with the U.S. Constitution.  While the referendum there
was not mob rule in the strictest sense, it's intent was firmly
isolate a segment of the population.  In my opinion, this matter
should have been submitted to the courts.

>> You mean our the "basic presumed definition" of marriage.  The
>> "presumed definition" regards qualifications to vote, own
>> property etc. have been expanded as the "presumed definitions"
>> failed to meet various constitutional tests.  Strip out the
>> religious controversies and the current situation
>here is roughly
>> similar, so far as I can tell.
>I'm not sure about that, mostly for the reasons and examples
>noted above.
>> >Stated from as secular of a point of view as I can muster:
>> >When a society seeks to tinker with basic foundational values
>> >without seeking even a minimum of consensus within that
>> >society, let alone any soul searching to know if what it
>> >is doing is right, it is playing with fire.  And as the
>> >saying goes, you can't play with fire and not get burned.<
>> I agree.  But I'm not sure an amendment is the right way to go
>> here. It seems to be both "parties" could get burned. I'm not
>> sure what purpose will be served.
>Obviously the amendment would be at variance with the views of
>SSM advocates, but how would this burn the opposite camp?  I
>would be curious on that point.  Apologies in advance if I'm
>asking you to repeat yourself, as I've not had a chance to
>read many of your earlier exchanges. <

The fight will be bitter and divisive. Both groups lose.  Should
the amendment fail -- as I think it will -- it could sweep in
other changes that many will not like.   Even if judicial review
permits SSM, the process would provide ample time to consider the
implications of such a decision and plan accordingly (the Church
wisely raised very similar concerns about the unintended
consequences that could have been "swept in" with passage of the
Equal Rights Amendment). For instance, how and when and if same
sex attraction is addressed by the schools should be a concern
to all; whether SSA folk should be treated as a protected class
is another.

If the amendment passes, which I doubt, I would guess it would be
eventually repealed. Right now the polls suggest a dead heat in
the popular vote.  A decade from now, I think the balance will
tip against the amendment.



Ron Scott

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