Saturday, August 16, 2003

A MORMON POLITICAL PRAYER: Here is something that I ran across doing some research here in Utah. I am looking at some of the wierd religion provisions of the Utah State Constitution. In studying the records of the state constitutional convention, I found this prayer, offered by George Q. Cannon at the opening session of the convention:

    Our Eternal Father, we approach Thee in the name of Thy Son, Jesus Christ, upon this occasion , and we desire to do so in a manner tha shall be acceptable in Thy sight. We feel, our Father, that this assemblage needs Thy Holy Spirit to be with them, they need Thy help, so that in the consideration of the great and important questions that shall enter into their discussions, they may be filled with that feeling cometh from Thee, with love for each other and for humanity, and be inspired by the highest and most patriotic motives that can fill the human breast; that in the framing of this important Constitution for this great country, they may, our Father, look constantly to Thee for that aid and help wich Thou alone can give, and that even though they may not belief in Thee (there may be some, our Father, who do not have faith in God) – yet that in their hearts there may be a desire to do that which is right for their fellowmen, and to look forward to the best interest of this country, and to do everthing that is possible to make this a great and a grand country, under a Constitution that shall be liberal in the largest acceptation of that term. Our Heavenly Father, the hearts of the people of this Territory are ventered in their desire that this Convention may be one that shall do honor to the great questions that shall be brought before it. We therefore invoke Thy divine blessing upon all connected therewith. We ask Thee to manifest Thy power, for we do feel deeply interested in the results of the debates that shall take place here; and wilt Thou remove, Father, from the breasts of these men every feeling of improper partisanship, that they may not contend for party advantage, nor to succeed ina ny direction that is not in the interests of the entire people. Help them, our Heavenly Father, we beseech Thee, and let Thy blessings rest down upon every one of them, and upon him who shall be called upon to preside, whoever he may be, that he may preside with dignity and with fairness, in the midsts of this Convention; upon the committtees that shall be appointed, that they may be filled with the same spirit and feeling and disposition, and that the whole people may rejoice exceedingly before Thee, the Lord our God, at the results of this Convention, and the spirit that shall be manifested by those who take part in its proceedings. All of which we humbly ask in the name of Jesus Christ, our Lord, amen.

In particular, I find Cannon's nod to the atheists in the audience fun.

Monday, August 11, 2003

A NEW JOB: I have been asked by the Journal of Law and Religion to be a peer reviewer with an emphasis in -- surprise! surprise! -- Mormonism. I can only hope that they actually get some manuscripts on the topic!

Sunday, August 10, 2003

POLICY, LEGITIMACY, AND NATURAL LAW: I will respond to just a couple of the issues raised by the Scientist in his post below. First, the issue of natural law. I don't think that a kind of Thomistic natural law based on a teleological conception of nature is available within Mormonism. At the very least, I think that our concept of God and creation precludes utilizing these arguments unproblematically, even if we were inclined to do so. (As the Scientist's reference to President Kimball points out, we are occasionally tempted this way.) I actually wrote a very short essay about this a while back, which I have taken the liberty of posting. You can read it here.

I am fairly certain that one could compile mounds of emperical evidence about the social benefits of marriage. At the very least, I suspect that it is very easy to demonstrate that (1) most crime is commited by men; and (2) most male crime is committed by single men. Obviously, there are difficulties of causation and corellation here, but I don't think they vitiate the core insight that marriage tends to amelerioate the anti-social tendencies fo males. One can also pile on the data about the negative effects of single parent homes, etc. Also, marriage serves an important social insurance function. When you get sick your spouse, rather than the state, becomes the first line of economic cushion. There are also those who claim to be able to make out a functionalist case against homosexual marriage on the basis of emperical data. On this issue I am far more skeptical.

However, at the end of the day, I don't think that the fight about homosexual marriage is about the social benefits or costs on homosexuality. Furthermore, I think that when push comes to shove, this is not what the Bretheren are really concerned about. For example, I have spoken with the woman (an active Democrat as it happens) who spear-headed the Church's anti-gay marriage effort in Hawaii. She stated that the position she took -- a position with Church backing -- was that "civil unions" that provided the same legal benefits as marriage (e.g. rights of survivorship to property, etc.) for homosexual couples were fine, so long as they were not called marriages.

I think that this points to the fact that what the fight is actually about is sexual legitimacy. Marriage has traditionally been the ultimate legitimizer of sexual behavior. Not surprisingly, as homosexuals have pushed for greater legitimacy for their sexual activities they have worked for marriage. I actually don't think that it is about the legal benefits. Rights to survivorship can be created by contract and will very easily. Tenacy in the entirety (the form of real estate ownership for married couples in many states) can be fairly well mimiced by joint tenacy with a few side contracts, as can community property. The right to make medical and funeral decisions can be very easily transfered by a durable power of attorney. Admittedly, some tax benefits are not creatable by contract, but when both spouses work the tax code actually penalizes marriage. In short, if what was at issue were purely the legal benefits, those benefits could be obtained at much lower cost through contracting rather than political pressure. I freely admitt that this is not a perfect solution for homosexual couples. My point is that the returns in legal benefits to hiring an estate planner versus hiring an attorney to challenge heterosexual marriage on the basis of an exotic equal protection argument are enormous.

Once the issue is formulated in terms of legitimation, then the Church's stance makes more sense. One needn't understand it in terms of direct social consequences or the dictates of nature. It is an attempt to deny to homosexuality the legitimizing label of marriage, nothing more or less. At this point, a host of issues arise. First, it seems that the debate over the use of the legitimizing power of marriage is occuring at a time when the legitimizing force of marriage is on the wane. The vast majority of my non-Mormon friends do not think that marriage is a necessary or sufficient condition of sexual legitimacy. I think that they reflect society as a whole quite well. Second, the question of whether or not revealed standards of sexual behavior can properly justify secular legal standards in a liberal democracy looms large. This is a difficult issue, and one that I am not going to get into here. It is really interesting, though.

In the end, I think that this whole problem was created by Henry VIII. He is the person in our legal tradition who made the church into an arm of the state and set the stage for the incorporation of canon law -- which included the law of marriage -- into the common law. A big mistake in my view. Much better to limit the authority of the state entirely and allow independent churches to have more authority. This, incidentally, is precisely the legal solution adopted by 19th century Mormon polygamists. The laws of Deseret and later the Territory of Utah did not acknowledge polygamous marriage as such. Rather, the territorial laws granted the church a corporate charter that included the authority to solemnize marriages, and then required the state to give full faith and credit to those marriages. Thus, heterodox marriages were accomadated in the legal system by loosening the control of the state on marriage itself. Perhaps there is a libertarian solution after all...