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LDS Actions Against Marriage Equality

LDS Rhetoric on Homosexuality

Morris A. Thurston

Religious Organizations Should Not Rely on False or Misleading Legal Arguments in their Zeal to Support California Proposition 8

By Morris A. Thurston
October 2, 2008

I have received a copy of William Duncan's response to my "Commentary on the Document 'Six Consequences . . . if Proposition 8 Fails.'" I must say that I am disappointed and somewhat bewildered by both the tone and content of his piece. He misrepresents the point of my Commentary and tries to deflect attention away from the inaccuracies of the "Six Consequences" document. In doing so, he implicitly supports the continued use of falsehoods in the cause of California Proposition 8. This is wrong.

As I noted in the introduction to my Commentary, my intent was as follows:

"[T]o be of service in helping our Church [The Church of Jesus Christ of Latter-day Saints] avoid charges of using falsehoods to gain a political victory. I do not believe these so-called 'Consequences' have originated at or been approved by Church headquarters; rather, I suspect they are the result of overzealous volunteers who have misinterpreted California law and the legal cases on which the supposed consequences depend. Relying on deceptive arguments is not only contrary to gospel principles, but ultimately works against the very mission of the Church."

The first person to whom I sent this document was the general counsel to the LDS Church. I knew he would see that it was referred to the appropriate people so that corrective steps could be taken. It was my hope—and still is—that the Church will take steps to cease the distribution and use of the erroneous and misleading "Six Consequences" document.

My contribution was never intended to be an exhaustive commentary on the subject of gay marriage. I fully recognize there are valid arguments that can be made on both sides of that question, but the arguments made in "Six Consequences" are not valid. I want to spare our Church any further embarrassment that may result from circulating such a document.

Mr. Duncan's response begins by attacking me as someone who "touts his personal religious activity." My Commentary identifies me (in a footnote) as an active member of the LDS Church. This is true. I make no claim that my church activity should guide anyone to accept or reject what I say and it was clear from the context that I was not speaking on behalf of the Church. Duncan's response to my Commentary identifies him as the director of the Marriage Law Foundation. I do not find this identification objectionable.

Mr. Duncan next claims that I "have been attacking the idea that redefining marriage in California creates possible negative ramifications for religious liberty in this state." Where is the attack he refers to? Does he seriously think my Commentary on the "Six Consequences" document constitutes such an attack? I invite readers to look at it again and make their own determination. Next he accuses me of saying that "there is no reason to worry that churches and religious believers will be harmed in any way if California redefines marriage." How does he get that out of my Commentary? Surely jumping to such unwarranted conclusions is unworthy of Mr. Duncan's fine academic credentials.

Duncan even finds a way to criticize me for referring to "The Divine Institution of Marriage," an article on the Church's website that reminds us of the importance of approaching this issue "with respect for others, understanding, honesty and civility." His criticism is that I referred specifically to this injunction, but not to the general conclusion that the redefinition of marriage bodes ill for religious liberty. Apparently he does not understand that my Commentary was not an attack on "The Divine Institution of Marriage;" it was merely a refutation of "Six Consequences." Obviously, any reader of my Commentary will know that the Church supports Proposition 8.

After impugning my motives, Mr. Duncan launches into a discussion of a variety of other issues, apparently in an attempt to deflect attention away from the "Six Consequences" document. In all that discussion (which constitutes the bulk of his response) he touches on only two of the issues discussed in my Commentary. The first is the North Coast Women's Care Medical Group case. This was not a gay marriage case. In my discussion (page seven of my Commentary), I pointed out that the decision was based on a California law that expressly bans discrimination by businesses based on sexual preference. I concluded: "Whether we agree with this decision or not, the fact is that the law upon which this ruling was based will not be affected by the passage of Proposition 8." It is disingenuous to claim that this sort of litigation will be avoided if Proposition 8 passes. Surely Mr. Duncan would agree.

The second issue in my Commentary that Mr. Duncan addresses is California Education Code 51890. In his response, Mr. Duncan says that this code section will "require schools to teach students of every age that there is no difference between a husband and wife and between same-sex couples." In so stating the issue, Mr. Duncan proves the point made in my Commentary; namely, that the statement in "Six Consequences" is misleading. That document contends that the California Education Code would require schools to teach that same sex marriage is "just as good as" heterosexual marriage. In fact, however, the Code does not require schools to make a value judgment on the moral aspects of same-sex marriage. Even Mr. Duncan's restatement of the issue, though preferable, is not entirely accurate. Perhaps he is trying to say is that if Prop 8 passes students will have to be taught that marriage between same-sex partners is lawful. If so, I would agree, though that seems obvious.

The rest of Mr. Duncan's response deals with other cases and other issues. Since my Commentary was never intended to imply that there are no arguments to be made against same sex marriage, I shall not bother to respond to it.

I can only hope that the official response of the Church to my Commentary will be more reasoned and charitable than Mr. Duncan's attack. I hope the Church will instruct its members that reliance on misleading and false "consequences" is not worthy of our basic values of honesty and fair dealing and that they should immediately cease further distribution of the "Six Consequences" document.

Morris Thurston received his undergraduate degree in political science from BYU and his law degree from Harvard Law School. He recently retired as a senior partner with a global law firm, where he specialized in litigation and intellectual property law.

To read Thurston's original rebuttal, click here.