https://americancynic.net/Atom Feed for 'law' Articles2018-08-03T20:38:59ZAmer Canishttps://americancynic.net/about/tag:americancynic.net,2015-01-02:/log/2015/1/1/eight_outdoor_homeless_deaths_during_2014_in_boulder_co_where_it_is_illegal_to_use_a_blanket_for_warmth/Eight Outdoor Homeless Deaths During 2014 in Boulder, CO, Where it is Illegal to Use a Blanket for Warmth2015-01-02T01:03:08Z2018-08-03T20:38:59Z<div class="quoteblock">
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“Civil government, so far as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all.” (<em>The Wealth of Nations</em>, Book V)
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— Adam Smith
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<p>Eight homeless people died outdoors or in public buildings during 2014 in Boulder, CO, which the Boulder <em>Camera</em> has chosen as its #3 local story of the year (Mitchell Byars, <a href="http://www.dailycamera.com/news/boulder/ci_27212489/top-10-local-news-stories-2014-no-3">“Boulder’s spike in homeless deaths,”</a> December 28, 2014). That is more than the total homeless deaths which occurred during the past three years combined.</p>
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<p>The <em>Camera</em> reported that in six of those 2014 deaths substance abuse was definitely or possibly a cause or contributing cause (including alcohol poisoning, heroin intoxication, and one man who died after falling off of a ledge on the CU campus while he was drunk). The cause of the latest death, Jason Gray, 42, whose body was found in November, is still under investigation.</p>
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<p>One man, Paul Klavoon, 52, died of hypothermia without the aid of any drugs during a very cold night in September.</p>
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<p>As per the city’s revised code <a href="https://library.municode.com/co/boulder/codes/municipal_code?nodeId=TIT5GEOF_CH6MIOF_5-6-10CALOPRWICO">§ 5-6-10</a>, it is illegal to “camp” anywhere on public or open space in Boulder while using “shelter”. For the purposes of the ordinance:</p>
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<p>“camp” means to reside or dwell temporarily in a place, with shelter, and conduct activities of daily living, such as eating or sleeping, in such place.</p>
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<p>The term "shelter" includes, without limitation, any cover or protection from the elements other than clothing.</p>
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<p>Those definitions apply to all residents of Boulder, including those with no homes or money and so no other place than public places to eat and sleep. While people literally freeze to death on the streets of Boulder, using anything other than clothing for warmth is illegal and makes homeless bodies vulnerable to further harassment at the hands of police.</p>
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<p>There was at least one case where a homeless man was cited under the city code for sleeping under a tree. The policeman apparently considered such proximity to vegetation to be “protection from the elements other than clothing.”</p>
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<p>Inspired by the success of Boulder’s harsh camping ban at withstanding legal challenge (including <a href="http://aclu-co.org/aclu-asks-colorado-high-court-to-find-boulder-no-camping-ordinance-unconstitutional/">a suit brought by the ACLU</a>), in early 2012 Denver’s city council passed an anti-camping bill which borrows its wording from Boulder’s law. Denver’s Revised Municipal Code § 38-86.2 includes the following definitions:</p>
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“Camp” means to reside or dwell temporarily in a place, with shelter. The term “shelter” includes, without limitation, any tent, tarpaulin, lean-to, sleeping bag, bedroll, blankets, or any form of cover or protection from the elements other than clothing. The term “reside or dwell” includes, without limitation, conducting such activities as eating, sleeping, or the storage of personal possessions.
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</div>Happy New Yeartag:americancynic.net,2014-12-10:/log/2014/12/10/catching_up_with_the_same-sex_marriage_circuit/Catching Up With the Same-Sex Marriage Circuit2014-12-10T15:07:38Z2015-09-28T05:23:46Z<div class="paragraph">
<p><strong>Update (June 29, 2015)</strong>: In its June 26 ruling in the case of <a href="https://en.wikipedia.org/wiki/Obergefell_v._Hodges"><em>Obergefell v. Hodges</em></a>, the Supreme Court has finally moved the issue of same-sex marriage beyond the immediate reach of the democratic process. The Court found that marriage between two people of the same sex is a fundamental right which is protected by the Fourteenth Amendment. Legislatures and voters of the various states no longer even have the possibility of infringing that right.</p>
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<p>The United States of America was founded as a markedly less democratic nation than it exists today. The designers of the various state governments preferred a system of representative legislators chosen by a small, wealthy subset of the male population. But the allure of democracy is strong, and the 18th and 19th centuries saw successful movements first for universal suffrage and then for the initiative and referendum.</p>
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<p>The first decade of the 21st century gave a small sample of how such direct democracy can go wrong, as the people in <a href="http://en.wikipedia.org/wiki/List_of_U.S._state_constitutional_amendments_banning_same-sex_unions_by_type#Amendments_that_ban_same-sex_marriage">dozens of states</a>, driven by religious superstition and cultural conservatism, used the referendum to enact constitutional bans on same-sex marriage. It wasn’t until 2012 that such an attempt to democratically control other people’s families failed when <a href="http://en.wikipedia.org/wiki/Minnesota_Amendment_1">Minnesota’s Amendment 1</a> was rejected by 51.19% of voters. Because of the silence of the Supreme Court, it has been left to federal district and appellate courts to override the bigoted voice of the American people in a piecemeal fashion.</p>
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<p>In April I wrote an article about <a href="https://en.wikipedia.org/wiki/Kitchen_v._Herbert"><em>Kitchen v. Herbert</em></a>, the case challenging Utah’s ban on same-sex marriage: <a href="/log/2014/4/24/loving_v_utah_and_mormonisms_embarrassing_saga_of_marriage_law/">“Loving v. Utah and Mormonism’s Embarrassing Saga of Marital Policy”</a>. At the time, the Tenth Circuit Court of Appeals had not yet made a ruling on the case. But in June the appellate court affirmed the district court’s ruling “that Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny.” The mandate for Utah to recognize same-sex marriages was stayed pending Supreme Court review.</p>
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<p>But on October 6, the Supreme Court denied without comment the petition to review, leaving the Tenth Circuit court’s mandate in effect which is binding not only in Utah but in Colorado, Kansas, New Mexico, Oklahoma, and Wyoming. At this time, Kansas still has a constitutional ban on same-sex marriage, but it should not survive challenge given the circuit court’s ruling.</p>
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<p>The Supreme Court also refused to decide on <a href="http://en.wikipedia.org/wiki/Bostic_v._Schaefer"><em>Bostic v. Schaefer</em></a> from the Fourth Circuit Court of Appeals and on <a href="http://en.wikipedia.org/wiki/Same-sex_marriage_in_Indiana#Baskin_v._Bogan"><em>Baskin v. Bogan</em></a> from the Seventh Circuit, leaving in place the district courts' rulings against the bans on same-sex marriage providing decisions and precedents binding in Virginia, Maryland, North Carolina, South Carolina, and West Virginia (Fourth Circuit); as well as Illinois, Indiana, and Wisconsin (Seventh Circuit).</p>
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<p>However, on November 6, 2014, the Sixth Circuit Court of Appeals in <a href="http://en.wikipedia.org/wiki/DeBoer_v._Snyder"><em>DeBoer v. Snyder</em></a> broke the pattern and reversed the decisions of district courts in Ohio, Michigan, Kentucky, and Tennessee which had ruled same-sex marriage bans in those states to be unconstitutional. In writing the majority <a href="http://www.sixthcircuitappellateblog.com/files/2014/11/Sixth-Circuit-Gay-Marriage-Opinion-14a0275p-06.pdf">opinion [PDF]</a>, Judge Sutton appealed to democracy, putting faith in the people’s ability to undo the marriage bans themselves without the court’s “impropriety of tinkering with the democratic process”:</p>
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“When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”
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— Judge Sutton<br>
<cite>DeBoer v. Snyder</cite>
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<p>So with federal appellate courts disagreeing with each other, clarification from the Supreme Court is still wanted.</p>
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<p>Embedded below is Wikipedia’s color-coded map displaying the legal standing of same-sex marriage in the various states prior to the <em>Obergefell v. Hodges</em> decision. Click the image to view the up-to-date version maintained on Wikipedia.</p>
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<a class="image" href="http://en.wikipedia.org/wiki/File:Samesex_marriage_in_USA.svg"><img src="/log/2014/12/10/catching_up_with_the_same-sex_marriage_circuit/marriage_map.png" alt="marriage map"></a>
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<div style="direction:ltr;"><span style="width: 2.8em; display: inline-block; text-align: center;"><span style="width: 2.4em; display: inline-block; text-align: center; border: 1px solid #808080; background-color: #002255;"> </span></span>  Same-sex marriage legal</div>
<div style="direction:ltr;"><span style="width: 2.8em; display: inline-block; text-align: center;"><span style="width: 2.4em; display: inline-block; text-align: center; border: 1px solid #808080; background-color: #0066ff;"> </span></span>  Same-sex marriages performed elsewhere recognized</div>
<div style="direction:ltr;"><span style="width: 2.8em; display: inline-block; text-align: center;"><span style="width: 2.4em; display: inline-block; text-align: center; border: 1px solid #808080; background-color: #00ccff;"> </span></span>  Same-sex marriage pending legalization, but not yet in effect</div>
<div style="direction:ltr;"><span style="width: 2.8em; display: inline-block; text-align: center;"><span style="width: 2.4em; display: inline-block; text-align: center; border: 1px solid #808080; background-color: #888888;"> </span></span>  Neither prohibition nor recognition of same-sex marriage in territory law</div>
<div style="direction:ltr;"><span style="width: 2.8em; display: inline-block; text-align: center;"><span style="width: 2.4em; display: inline-block; text-align: center; border: 1px solid #808080; background-color: #cc9933;"> </span></span>  Judicial ruling against same-sex marriage ban, stayed indefinitely pending appeal</div>
<div style="direction:ltr;"><span style="width: 2.8em; display: inline-block; text-align: center;"><span style="width: 2.4em; display: inline-block; text-align: center; border: 1px solid #808080; background-color: #990000;"> </span></span>  Same-sex marriage banned
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</div>The Supreme Court refused to review several cases this October, leaving district court rulings against same-sex marriage bans in effect.tag:americancynic.net,2014-05-09:/log/2014/5/9/on_the_cecily_mcmillan_conviction/On the Cecily McMillan Conviction2014-05-09T15:30:28Z2015-09-28T05:23:46Z<div class="paragraph">
<p>On Monday, Cecily McMillan <a href="http://www.nytimes.com/2014/05/06/nyregion/occupy-wall-street-protester-is-found-guilty-of-assaulting-officer.html">was found guilty</a> of felony assault for elbowing a cop in the eye when he was trying to arrest her at an Occupy Wall Street rally in 2012. She is now in jail awaiting sentencing where she’ll face up to seven years in prison. McMillan claimed she reflexively elbowed the officer after he grabbed her right breast. The jury was convinced she elbowed him with criminal intent. There is <a href="https://www.youtube.com/watch?v=6kceO8vCUm8">a video of the incident on YouTube</a>, but it is too dark and grainy to see where the officers' hands were. So I don’t know.</p>
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<p><strong>Update:</strong> Cecily was sentenced to 90 days of prison and five years of probation. She served 58 days at Rikers Island, and was released in July, 2014. She wrote an article for <em>Cosmopolitan</em> about her experience, <a href="http://www.cosmopolitan.com/politics/a29775/cecily-mcmillan-grad-school-to-jail/">“I Went From Grad School to Prison”</a>. In October, 2014, she was tried and acquitted on charges of obstructing police stemming from a separate incident (Colin Moynihan, <a href="http://www.nytimes.com/2014/10/11/nyregion/occupy-wall-street-protester-found-not-guilty-of-obstruction-charge.html">“Occupy Wall Street Protester Found Not Guilty of Obstruction,”</a> The <em>New York Times</em>, Oct. 10, 2014).</p>
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<p>In May 2012, Daivd Graeber reported on an apparent tactic being used by NYPD of assaulting female protesters in an attempt at inciting them or their male companions to react in a criminal manner (“<a href="http://www.nakedcapitalism.com/2012/05/david-graeber-new-police-strategy-in-new-york-sexual-assault-against-peaceful-protestors.html">New Police Strategy in New York – Sexual Assault Against Peaceful Protestors,</a>” <em>Naked Capitalism</em>, May 2012). I don’t think that the speculation of an intentional tactic has been confirmed, although it is still a disturbing pattern. Later in 2012 a national consortium of law schools released a 132-page report, <a href="http://hrp.law.harvard.edu/criminal-justice/suppressing-protest-human-rights-violations-in-the-u-s-response-to-occupy-wall-street/"><em>Suppressing Protest: Human Rights Violations in the U.S. Response to Occupy Wall Street</em></a>, documenting “a pattern of abusive and unaccountable protest policing by the NYPD.” The report alleges 130 cases of aggressive or excessive force used by the NYPD in response to Occupy Wall Street. So McMillan’s claims fit within the known NYPD <em>modus operandi</em>, anyway.</p>
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<p>Of course the jury was told nothing about those patterns of abuse, or about Officer <a href="http://www.theguardian.com/world/2014/apr/04/nypd-officer-lawsuit-bovell-guest-mcmillan-occupy">Bovell’s own history of corruption and abuse</a>. Molly Knefel has a worthwhile article about McMillan’s trial up at the Gaurdian describing how the “hyper-selective retelling of events to the jury mirrored the broader popular narrative of OWS” in which police violence is unquestioningly justified (“<a href="http://www.theguardian.com/commentisfree/2014/may/05/cecily-mcmillan-occupy-guilty-police-violence">Cecily McMillan’s guilty verdict reveals our mass acceptance of police violence</a>,” May 5, 2014).</p>
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<p>But then the whole idea of a jury trial is that both sides are given a chance to present an interpretation of the accepted facts in a manner which paints their side in the best light. The jury can then decide on where the truth lies between the two extremes and determine if the facts as they find them meet the elements of the crime. But I’ve experienced a small first-hand taste of how such a method of finding truth between extremes can become rather absurd, and how the state has no qualms in using its status of legitimacy in the minds of jurors to distort the narrative in the courtroom.</p>
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<p><a href="/log/2011/11/2/i_was_arrested">I was arrested</a> back when the state police raided Occupy Denver in 2011. During that event, the police disassembled tents and made a big mess of the park. The prosecutor then introduced photographs of that mess at my trial as evidence that the protesters (and by association, I) were messy. Not only was the evidence misleading, it was humorously irrelevant since I had not even been charged with a crime of mess-making.</p>
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<p>I was at trial because I had refused a plea bargain. In response to my refusal, the DA added a more serious charge (“obstructing a law officer”) to my alleged crimes. At trial he managed to get my arresting officer to distance himself from his professional integrity by testifying using obviously coached language that I had “obstructed” his actions (testimony, fortunately in my case, the jury did not believe).</p>
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<p>Cecily McMillan, maintaining from the beginning that she did not knowingly commit a crime, also refused a plea offer. So it is easy for me to see her vigorous prosecution as a revanchist attempt by the prosecutor to punish her noncooperation. When she was arrested, McMillan was tackled by several police officers. She then suffered a seizure (or series of seizures), and the police prevented street medics from attending to her (while rendering no aid themselves). The City of New York then spent two years (and untold amounts of public money) convicting her of a felony. All of that expense and trouble and careful portrayal of the evidence just to ensure that a girl who had a bad day in 2012 suffers some more.</p>
</div>Cecily McMillan, an Occupy Wall Street protester, was recently convicted of felony assault on a police officer.tag:americancynic.net,2014-04-24:/log/2014/4/24/loving_v_utah_and_mormonisms_embarrassing_saga_of_marriage_law/Loving v. Utah and Mormonism's Embarrassing Saga of Marital Policy2014-04-24T16:16:07Z2018-08-03T20:33:45Z<div class="sect1">
<h2 id="_kitchen_v_herbert">Kitchen v. Herbert</h2>
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The State’s prohibition of the Plaintiffs' right to choose a same-sex marriage partner renders their fundamental right to marry as meaningless as if the State recognized the Plaintiffs' right to bear arms but not their right to buy bullets.
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— Judge Robert Shelby<br>
<cite>Kitchen v. Herbert</cite>
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<p>April 10 was the 47th anniversary of the date <a href="https://en.wikipedia.org/wiki/Loving_v._Virginia"><em>Loving v. Virginia</em></a><sup class="footnote">[<a id="_footnoteref_1" class="footnote" href="#_footnotedef_1" title="View footnote.">1</a>]</sup> was argued before the U.S. Supreme Court. <em>Loving</em> was the landmark case which found miscegenation laws (those laws which prohibited interracial marriages) to be unconstitutional. April 10 also happened to be the date the Tenth Circuit Court of Appeals heard arguments in <a href="https://en.wikipedia.org/wiki/Kitchen_v._Herbert"><em>Kitchen v. Herbert</em></a>,<sup class="footnote">[<a id="_footnoteref_2" class="footnote" href="#_footnotedef_2" title="View footnote.">2</a>]</sup> the case challenging Utah’s constitutional prohibition of same-sex marriages.</p>
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<p>Almost 66% of Utah’s voters approved <a href="https://en.wikipedia.org/wiki/Utah_Constitutional_Amendment_3">Amendment 3</a> in 2004. The amendment defines marriage as consisting “only of the legal union between a man and a woman,” as a preemptive measure to defend the state’s marriage statutes against constitutional challenge. On December 20, 2013, a Federal District Court ruled in <em>Kitchen</em> that the amendment violated the rights to due process and equal protection under the law as guaranteed by the Fourteenth Amendment, on a rational basis alone.</p>
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<p>In the conclusion of his ruling, Judge Robert Shelby found the state’s contentions in <em>Loving</em> to be “almost identical to the assertions made by the State of Utah in support of Utah’s laws prohibiting same-sex marriage.” He found those assertions to be unconvincing:</p>
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<p>Anti-miscegenation laws in Virginia and elsewhere were designed to, and did, deprive a targeted minority of the full measure of human dignity and liberty by denying them the freedom to marry the partner of their choice. Utah’s Amendment 3 achieves the same result.</p>
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<p>Rather than protecting or supporting the families of opposite-sex couples, Amendment 3 perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition. Amendment 3 does not thereby elevate the status of opposite-sex marriage; it merely demeans the dignity of same-sex couples.</p>
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<p><span class="line-through">Judge Shelby’s ruling was appealed, and the parties are currently waiting on the Tenth Circuit Court in Denver to make a decision. If it is appealed again, there is a chance that the case will be selected to be heard by the U.S. Supreme Court which could finally establish some national precedent on the matter.</span></p>
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<p>Judge Shelby’s ruling was appealed, providing an opportunity for the Tenth Circuit Court in Denver to consider the validity of marriage bans for the first time. That court found the appellants' justifications to fail the strict scrutiny test, affirming the district court’s ruling “that Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny.” In October, the Supreme Court denied without comment the writ of certiorari leaving the appellate court’s mandate in effect: same-sex marriages are valid and must be recognized in the State of Utah. (On June 26, 2015, in <a href="https://en.wikipedia.org/wiki/Obergefell_v._Hodges"><em>Obergefell v. Hodges</em></a>, the Supreme Court found it to be unconstitutional to deny marriages to same-sex couples making such marriages available and recognized throughout the union.)</p>
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<p>Legal analogies between interracial couples' right to marry and same-sex couples' right to marry have been made almost since the Supreme Court ruled on <em>Loving</em> in 1967. In her celebrated and comprehensive history of miscegenation law, <em>What Comes Naturally</em>, Peggy Pascoe mentioned such an analogy being dismissed by the Minnesota Supreme Court in 1971. It wasn’t until a ruling by the Hawaii Supreme Court in 1993 that courts began taking the same-sex analogy to <em>Loving</em> seriously:</p>
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“After the Hawaii ruling, both the energy of the campaign to legalize same-sex marriage and the number of court cases that accompanied it grew by leaps and bounds. Over the next decade, several judges issued rulings overturning state bans, and they used the parallel to <em>Loving v. Virginia</em> to do so.” (299-300)
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<p>In an essay she wrote for <em>History News Network</em>, “<a href="http://hnn.us/article/4708">Why the Ugly Rhetoric Against Gay Marriage Is Familiar to this Historian of Miscegenation,</a>” Pascoe argued that in order to understand the current debate over same-sex marriage it is first necessary to understand the history of American miscegenation laws, “because both supporters and opponents of same-sex marriage come to this debate, knowing or unknowingly, wielding rhetorical tools forged during the history of miscegenation law.” She also noted that, “The arguments white supremacists used to justify for miscegenation laws—​that interracial marriages were contrary to God’s will or somehow unnatural—​are echoed today by the most conservative opponents of same-sex marriage.”</p>
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<h2 id="_heteronormativity_for_time_and_all_eternity">Heteronormativity for Time and All Eternity</h2>
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<p>And indeed the opponents of same-sex marriage are almost invariably religious and motivated by an adherence to what they believe to be divine revelations and/or a philosophy of natural law. In the <em>Kitchen</em> appeal, a coalition of Christian churches filed a 42-page amicus brief in support of the state.<sup class="footnote">[<a id="_footnoteref_3" class="footnote" href="#_footnotedef_3" title="View footnote.">3</a>]</sup> The brief represents something of an ecumenical wonder, bringing together in the battle against same-sex marriage the United States Conference of Catholic Bishops, the National Association of Evangelicals, The Church of Jesus Christ of Latter-day Saints, the Southern Baptist Convention, and the Lutheran Church—​Missouri Synod.</p>
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<p>Apparently if there is anything Catholics, Mormons, Evangelicals, Lutherans, and Southern Baptists all agree on, it is that the sexes of would-be spouses are important and should be regulated by the state.</p>
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<p>The Church of Jesus Christ of Latter-day Saints (Mormons) appears to have the strongest motivation to preserve a traditional definition of marriage in Utah. Not only because of that church’s deep ties to Utah, but also because family occupies an unusually important position in Mormon thought. Unlike other Christian sects who marry “until death do us part,” Mormon couples partake in an ordinance of “celestial marriage” in which they are sealed during a temple ceremony “for time and eternity.”</p>
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<p>To Mormons, family is not merely the fundamental unit of society here on earth. It is also an everlasting institution, a cosmic matrix underlying the very purpose of life and eternal progression: we were spirit children of Heavenly Father and Mother in our pre-earth existence; we gain physical bodies, faith, and families in this, our mortal life; after physical death, our bodies and families will be raised into exalted existence, like God was in his body, at the time of the resurrection to progress evermore and perhaps begin the cycle anew.<sup class="footnote">[<a id="_footnoteref_4" class="footnote" href="#_footnotedef_4" title="View footnote.">4</a>]</sup></p>
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<p>In 1995, the LDS First Presidency released a statement reaffirming the importance of the family and emphasizing that marriage is between a man and a woman (“The family is ordained of God. Marriage between man and woman is essential to His eternal plan”). That statement, titled “<a href="https://www.lds.org/topics/family-proclamation">The Family: A Proclamation to the World</a>”, is cited on page 10 of the amicus brief filed in the <em>Kitchen</em> appeal to demonstrate, strangely enough, that for Mormons “homosexuality is remote from teachings about marriage and family” in order to argue against “the suggestion that religious support for husband-wife marriage is rooted in anti-homosexual animus.”</p>
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<p>The Church’s interest in the state definition and regulation of marriage may be explained by a fear expressed succinctly on page 19 of the religious brief: “if the meaning of marriage is changed in concept, the cultural significance attached to marriage will also change in practice.”</p>
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<h2 id="_freedoms_and_restrictions_in_the_history_of_mormon_marriage">Freedoms and Restrictions in the History of Mormon Marriage</h2>
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<p>But there was a time when the Mormons were condemned for having too liberal a view of marriage and family. In nineteenth-century Utah “celestial marriage” was a euphemism for “plural marriage,” a practice in which some Mormon men would take multiple wives. At that time, plural marriage was taught as being essential to eternal progression, just as opposite-sex marriage is proclaimed by the Church to be essential today.</p>
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<p>In 1866 Brigham Young, the second president of the LDS Church and himself a great fan of the doctrine of plural marriage, delivered a brief defense of polygamy in which he stated, “The only men who become gods, even the Sons of God, are those who enter into polygamy.” In that same sermon, Young declared that if Utah was not admitted as a state to the union until it outlawed polygamy “then, we shall never be admitted.”⁠<sup class="footnote">[<a id="_footnoteref_5" class="footnote" href="#_footnotedef_5" title="View footnote.">5</a>]</sup></p>
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<p>Faced with increasing social pressure and ruinous repression by the federal government (particularly the <a href="https://en.wikipedia.org/wiki/Edmunds%E2%80%93Tucker_Act">Edmunds-Tucker Act of 1887</a>), the Church leaders' courageous defiance was set aside in favor of practicality. In 1890 Wilford Woodruff, the fourth president of the Church, after claiming to have received a revelation from Jesus Christ on the matter, issued <a href="https://www.lds.org/scriptures/dc-testament/od/1?lang=eng#">`The Manifesto'</a> which ended the practice of plural marriage by the Church. Utah was admitted as the 45th U.S. state a little over five years after the manifesto was issued.</p>
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<div class="paragraph">
<p>While the LDS Church experimented with marriage freedoms in the number of wives, it also historically restricted freedoms based on race. From the presidency of Brigham Young until 1978, the Church did not ordain black men to its priesthood or allow black members to participate in temple sealing ordinances — blacks were excluded from celestial marriage and the postmortal exaltation for which it is essential.</p>
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<div class="paragraph">
<p>Nineteenth- and early twentieth-century Mormons combined contemporary justifications for slavery and apartheid, such as the theory that black skin was a divine curse marking out the descendants of Cain, with their own doctrine of premortal existence and agency to develop an especially vicious justification for racism: blacks were to be disenfranchised, and it was their own fault by their own choosing.<sup class="footnote">[<a id="_footnoteref_6" class="footnote" href="#_footnotedef_6" title="View footnote.">6</a>]</sup></p>
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<div class="paragraph">
<p>The Church’s race realism, while tenuously implementable in the United States, was completely useless when the Church began proselytizing in ethnically mixed populations such as in Brazil. This practical difficulty combined with increasing political pressure since the Civil Rights Movement forced the Church to abandon its racist policies. In June 1978, the Church leadership received a revelation which removed the racial restrictions on priesthood membership and access to the temple including celestial marriage — over ten years after <em>Loving v. Virginia</em>.<sup class="footnote">[<a id="_footnoteref_7" class="footnote" href="#_footnotedef_7" title="View footnote.">7</a>]</sup></p>
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</div>
</div>
<div class="sect1">
<h2 id="_conclusion">Conclusion</h2>
<div class="sectionbody">
<div class="paragraph">
<p>With their efforts to exclude same-sex couples from both celestial and mortal marriage (the 1995 Proclamation, California’s Proposition 8, Utah’s Amendment 3, etc.), the men who lead the LDS Church today seem determined to continue the Mormon tradition of teaching divine principles of marriage which it is later forced to rescind.</p>
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<div class="paragraph">
<p>If I were a Mormon, the thing that would frustrate me the most is how completely unnecessary the emphasis on heteronormative marriage is to the doctrine of celestial marriage. It would be much less painful (and more consistent with the Church’s pro-family rhetoric) to make room in the Celestial Kingdom for same-sex families than it is to kick against the goads of a changing culture. It is embarrassing for an organization lead by purported prophets, seers, and revelators to repeatedly exhibit such shortsightedness.</p>
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<div class="sect1">
<h2 id="_references_and_notes">References and Notes</h2>
<div class="sectionbody">
<div class="paragraph">
<p>Pascoe, Peggy. <a href="http://www.worldcat.org/oclc/690508927"><em>What Comes Naturally: Miscegenation Law and the Making of Race in America</em></a>. Oxford: Oxford University Press, 2009.</p>
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<div class="paragraph">
<p>Tanner, Jerald, and Sandra Tanner. <a href="http://www.utlm.org/onlinebooks/curseofcain_contents.htm"><em>Curse of Cain?: Racism in the Mormon Church</em></a>. Salt Lake City, UT: Utah Lighthouse Ministry, 2004. <a href="http://www.utlm.org/onlinebooks/curseofcain_contents.htm" class="bare">http://www.utlm.org/onlinebooks/curseofcain_contents.htm</a></p>
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<div class="paragraph">
<p>The Church of Jesus Christ of Latter-day Saints. “<a href="https://www.lds.org/topics/race-and-the-priesthood?lang=eng">Race and Priesthood</a>”. <a href="https://www.lds.org/topics/race-and-the-priesthood?lang=eng" class="bare">https://www.lds.org/topics/race-and-the-priesthood?lang=eng</a></p>
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<div class="paragraph">
<p>Young, Brigham. “<a href="http://jod.mrm.org/11/266">Delegate Hooper—Beneficial Effects of Polygamy—Final Redemption of Cain</a>”. <em>Journal of Discourses</em> 11 (1866): 266-272. <a href="http://jod.mrm.org/11/266" class="bare">http://jod.mrm.org/11/266</a></p>
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</div>
</div>
<div id="footnotes">
<hr>
<div class="footnote" id="_footnotedef_1">
<a href="#_footnoteref_1">1</a>. <em>Loving v. Virginia</em>, 388 U.S. 1 (1967)
</div>
<div class="footnote" id="_footnotedef_2">
<a href="#_footnoteref_2">2</a>. <em>Kitchen v. Herbert</em>, 961 F.Supp.2d 1181 (D. Utah 2013), _affirmed_ 755 F.3d 1193 (10th Cir. 2014); <em>stay granted</em>, 134 S.Ct. 893 (2014); <em>petition for certiorari denied</em>, No. 14-124, 2014 WL 3841263 (Oct. 6, 2014)
</div>
<div class="footnote" id="_footnotedef_3">
<a href="#_footnoteref_3">3</a>. The brief is available in several formats at archive.org: “<a href="https://archive.org/details/Gov.uscourts.ca10.13-4078Kitchen-v.-Herbert-Doc.-01019200417">Brief if Amici Curiae United States Conference of Catholic Bishops; National Association of Evangelicals; The Church of Jesus Christ of Latter-day Saints; The Ethics & Religious Liberty Commission of the Southern Baptist Convention; and Lutheran Church—​Missouri Synod In Support of Defendants-Appellants and Supporting Reversal, Case Nos. 13-4178, 14-5003, 14-5006, United States Court of Appeals for the Tenth Circuit (February 10, 2014)</a>”
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<div class="footnote" id="_footnotedef_4">
<a href="#_footnoteref_4">4</a>. For an example of teaching on these topics, see the 1909 statement issued by the First Presidency, “<a href="https://www.lds.org/ensign/2002/02/the-origin-of-man?lang=eng">The Origin of Man</a>”, in which President Joseph F. Smith taught that “man, as a spirit, was begotten and born of heavenly parents, and reared to maturity in the eternal mansions of the Father, prior to coming upon the earth in a temporal body to undergo an experience in mortality.”
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<div class="footnote" id="_footnotedef_5">
<a href="#_footnoteref_5">5</a>. Young, “Beneficial Effects of Polygamy,” 269.
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<div class="footnote" id="_footnotedef_6">
<a href="#_footnoteref_6">6</a>. For many quotations by Mormon leaders on the curse of Cain and the premortal justification of racism, see Tanner, <em>Curse of Cain?</em>
</div>
<div class="footnote" id="_footnotedef_7">
<a href="#_footnoteref_7">7</a>. “<a href="https://www.lds.org/topics/race-and-the-priesthood?lang=eng">Race and Priesthood.</a>”
</div>
</div>A look at Utah's fight over Amendment 3 including its parallels to Loving v. Virginia and the Mormon Church's unenviable position as it once again finds itself clinging to an antiquated notion of marriage.