Vision for Religious Freedom

True equality requires the protection of religious liberty. Religious freedom ensures equal treatment for all of God’s children.

To understand the former, one need only contemplate the contradiction in values, morals and logic contained in this scenario: A demand for equality leads to legal protection of an individual’s right to their core belief and expression regarding sexuality, but leads to legal prosecution of another individual for exercising their right to their core belief and expression regarding God. That is, in fact, a form of intolerance and inequality masquerading as equality.

To understand the latter, one need only ponder the historical fact that religion was a driving force behind the abolition of the English slave trade, the emancipation of American slaves, and the American civil rights movement. Reverend Martin Luther King, Jr. did not lead America’s civil rights movement in spite of his religious identity, but because of it.

Very early on in America’s history, Alexis de Tocqueville noted: “Religion, which, among Americans, never mixes directly in the government of society, should therefore be considered as the first of their political institutions; for if it does not give them a taste for freedom, it singularly facilitates their use of it.”[1] Part of what Tocqueville meant is that religion shapes the experience of citizenship. It is easy to see then, why the freedom to practice religion is critical to the nation’s order and character.

The interconnectedness of religion, equality and freedom is uniquely American. Other nations have viewed religious freedom in different ways. The French Revolution’s 1789 Declaration of the Rights of Man had a “religious freedom” provision, which subordinated the right to the perceived interests of the state: “No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.” This approach allowed for unfettered freedom to believe, but severely constricted the ability to act on or express that belief.

Even the charter of the Soviet Union guaranteed “freedom of religious worship,” which looked nothing like what Americans would recognize as freedom. The governing principle of Communist Russia was that everyone was free to believe what they would like, but with the caveat that expressing those beliefs in contradiction to the laws and will of the state would be severely punished. In practice, even the guarantee of freedom of belief was never honored.

Contrast the foreign ideas of freedom of religious views and religious worship to the American principle of religious freedom. Religious freedom is core to the way Americans constitute ourselves as a people. The pursuit of religious liberty motivated the establishment of America’s second English colony in 1620 in Plymouth, Massachusetts. Religious freedom also holds a unique place in our constitutional order: It is literally the first freedom protected in the Bill of Rights.

Religious freedom in the Constitution is found in two places. The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” There is also a provision in the text of the original Constitution, less remarked upon, but no less important. Article VI says that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

Taken together, these provisions, and similar ones in the constitutions of each state, show that the American ideal is one of robust protection for religious belief, worship and expression in the public square. These protections include three connected principles:

  1. All human beings should be free in their religious beliefs and practices without suffering persecution or official discrimination, except in the rare instances where a religious practice compromises a compelling governmental interest (e.g., protecting innocent life).
  2. Religious organizations must be free to determine doctrines and practices, including standards for membership, and to carry out their activities without government interference.
  3. No one should be forced by the government to affirm or support beliefs to which they do not freely ascribe.

Despite the robustness of the American principle of religious freedom contained in the Constitution, limited conceptions of religious freedom have their advocates in the modern United States. There has been a rhetorical shift among some to speak of a “freedom of worship.” This means that churches and individuals can believe and teach what they like, and perhaps even select their own clergy and perform their own ceremonies, but this “freedom” essentially ends outside the door of the meetinghouse, mosque, cathedral or synagogue.

For instance, a prominent government official recently argued that religious freedom was merely a “code word” for darker motives, such as hate for a particular group of people – the implicit suggestion being that the government can restrict the freedom of people of faith if their beliefs conflict with the official government-endorsed ideology: discriminating against religious people because of their beliefs, in the name of anti-discrimination.

A related notion is that other protections, like freedom of speech, are adequate to protect religious people. Thus, a recent Supreme Court decision dismissed concerns about religious organizations and individuals being asked to facilitate conduct at odds with their beliefs by saying that they still have the ability to verbally express their teachings. But the freedom to state one’s core beliefs becomes largely meaningless without its intended companion: freedom to live according to those core beliefs.

A free society prioritizes religious freedom. It recognizes what Tocqueville observed, that religious devotion fosters accountability that, in turn, secures the qualities in citizens that allows for a broadly tolerant and pluralistic community that is both safe and open. It also recognizes America’s historical reality: that religion is tied to equality, and without religious freedom equality would not exist in its current form in America.

With very rare exceptions – the damaging effects of which can be alleviated by existing constitutional principles – religion inculcates in its adherents a spirit of civility and public-spiritedness that allows a free society to flourish. It motivates individuals to come together to care for those who are less fortunate and to protect those otherwise excluded from the bounties of a prosperous nation.

Religious freedom is a foundation of a decent, equal and free society.


[1] Alexis de Tocqueville, Democracy in America 280 (translated by Harvey C. Mansfield & Delba Winthrop, 2000).

Legal backgrounder: The Obama administration’s attempt to rewrite Title IX

When Congress enacted Title IX in 1972, it did not intend to give the president or executive agencies a blank check to write dramatically new social policy.

That, however, is precisely what the administration is doing today by announcing that it has reinterpreted that statute to require schools to create new policies on restroom use, so as to accommodate those who would like to use the restroom of the opposite sex.

The administration’s position goes beyond its legal authority. Only Congress can make so fundamental a change in the law. On issues of this magnitude, which implicate issues of the rule of law, safety, privacy, self-government, federalism, and more, the process is critical. The president cannot legislate with a stroke of a pen. Something this important cannot be a matter of bureaucratic fiat.

Forty years ago, Congress approved the Education Amendments of 1972 by 88 percent in the Senate and 69 percent in the House, sending them on to President Richard Nixon for his signature. The heart of that law is Title IX:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

Congress has occasionally supplemented and modified the law in the ensuing decades, but in the last few years, something more troubling has begun to occur. It is nothing short of an attempt by the current presidential administration to rewrite this venerable statute without congressional oversight.

The attempt to remake Title IX began recently. In April 2014, the Department of Education issued “guidance” on enforcing Title IX, the law banning sexual discrimination in education, in the context of sexual violence. The 46-page document includes an interpretation of the statute that includes “gender identity”: “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR [Office of Civil Rights] accepts such complaints for investigation. Similarly, the actual or perceived sexual orientation or gender identity of the parties does not change a school’s obligations.”[1]

In January 2015, OCR issued a dear colleague letter interpreting this document as requiring schools to provide all facilities and services based on the self-identified gender of students. This letter informed an unnamed school official (the information is redacted in the available copy):

The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. OCR also encourages schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.[2]

The letter referenced two OCR investigations that resulted in out-of-court resolutions.

The first involved Arcadia School District in California. There, OCR investigated complaints of discrimination against transgender students, specifically that “the District prohibited the Student from using sex-specific restroom and locker room facilities designated for boys during his sixth and seventh grade years.”[3] The agreement between OCR and the District required the District to hire a consultant, create a support team at the parents’ request, and

  1. provide the Student access to sex-specific facilities designated for male students at school consistent with his gender identity; however, the Student may request access to private facilities based on privacy, safety, or other concerns;
  2. provide the Student access to sex-specific facilities designated for male students at all District-sponsored activities, including overnight events and extracurricular activities on and off campus, consistent with his gender identity; however, the Student may request access to private facilities based on privacy, safety, or other concerns;
  3. treat the Student the same as other male students in all respects in the education programs and activities offered by the District; and
  4. ensure that any school records containing the Student’s birth name or reflecting the Student’s assigned sex, if any, are treated as confidential, personally identifiable information; are maintained separately from the Student’s records; and are not disclosed to any District employees, students, or others without the express written consent of the Student’s parents or, after the Student turns 18 or is emancipated, the Student.

At the district level, the school agreed to implement new discrimination policies to “specifically include gender-based discrimination as a form of discrimination based on sex, and b. state that gender-based discrimination includes discrimination based on a student’s gender identity, gender expression, gender transition, transgender status, or gender nonconformity,” revise policies to “to ensure that all students, including gender nonconforming and transgender students, are provided with equal access to all such programs and activities,” provide training to employees on transgender issues and provide reports to OCR.[4]

The second resolution involved a complaint against Downey School District, also in California, and alleged more general harassment of a male student who now identified as female.[5] The resolution agreement requires the district to “continue to treat the Student the same as other female students in all respects in the education programs and activities offered by the District, including access to sex-designated facilities for female students at school, and at all District-sponsored activities, including overnight events, try-outs and participation in extracurricular activities on and off campus, consistent with her gender identity.”[6] The district was required to enact the same kinds of policies required of Arcadia.

In June 2015, the Department of Justice filed a “Statement of Interest” in a federal case in Virginia which argues the OCR position as the appropriate interpretation of the requirements of Title IX: “The term ‘sex’ as it is used in Title IX is broad and encompasses gender identity, including transgender status.”[7] The case was brought by the ACLU on behalf of a student, born female, but who now identifies as male. The student alleges she was allowed to use the boys restrooms for a few weeks but the school district then enacted a policy that specified bathroom assignments follow biological sex. For students with “gender identity issues” the district designated private facilities. The ACLU says this “segregates transgender students from their peers.”[8]

The district court actually dismissed the claim, saying the OCR interpretation is not a plausible reading of the law and conflicts with an earlier Department of Education regulation that says schools may segregate based on sex, which this court said must include biological sex.[9] The ACLU has appealed.[10]

In another case, in Palatine, Illinois, a boy who identifies as a girl sought access to the girls locker room rather than the private facilities offered by the school. The student filed a complaint with the Department of Education with ACLU help, and OCR told the school it needed to allow the student to use the girls locker room.[11]

These cases are having an impact on other schools’ policies. In Hillsboro, Missouri, despite a student walkout opposing the policy, the high school allowed a male student who identifies as female to use women’s facilities. A news report explains:

Districts that refuse to allow students to use a bathroom for the gender with which they identify could run afoul of the U.S. Department of Education’s Office of Civil Rights, said Kelli Hopkins of the Missouri School Boards’ Association.

“The Office of Civil Rights has issued an opinion that says, if you do this, you have engaged in gender discrimination,” Hopkins said. “At the same time, there is no case law or statute in Missouri that says this is against the law.”

Schools found to have violated a student’s civil rights are at risk of losing some of their federal funding, Hopkins said.[12]

Fairfax County, Virginia, also implemented a policy adding “gender identity” to the district’s discrimination policy after being told OCR could terminate federal funding if it did not.[13]

In December 2015, a federal court in California denied Pepperdine University’s motion to dismiss a lawsuit alleging the university’s basketball team discriminated against two lesbian players. The court concluded, “[S]exual orientation discrimination is not a category distinct from sex or gender discrimination. Thus, claims of discrimination based on sexual orientation are covered by Title VII and IX, but not as a category of independent claims separate from sex and gender stereotype. Rather, claims of sexual orientation discrimination are gender stereotype or sex discrimination claims.”[14] The court cited the EEOC guidance on Title VII as support for this conclusion.

Most recently, activist groups have set their sights on religious schools that have sought an exemption from these interpretations of Title IX. Title IX has long allowed schools to request an exemption from the statute if “application of the law would conflict with specific tenets of the religion” so as not to lose federal funding and open themselves to private lawsuits. The exemption will be granted as long as a school can show it is controlled by a religious organization and it identifies which applications of the law conflict with its religious teachings. At the urging of the Human Rights Campaign and others, the Department of Education announced earlier this year that it would “create a searchable database that reveals the names of colleges and universities that have received exemptions on religious grounds from federal civil rights protections.”[15]

Now, on May 13, 2016, the Department of Education and the Department of Justice issued another letter reiterating its claim that Title IX “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.”[16] In fact, the letter brazenly asserts that it is not adding “requirements to applicable law.” The letter also specifically invokes the possibility that schools may lose federal funds if they are not in compliance.

Some excerpts from the letter illustrate how remarkably broad and novel the administration’s requirements are:

The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity. Because transgender students often are unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence), requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity.

A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.


The Departments have resolved Title IX investigations with agreements committing that school staff and contractors will use pronouns and names consistent with a transgender student’s gender identity.


Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances. When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.

The provision getting the most attention relates to the use of locker rooms and restrooms and specifically precludes a solution where schools provide single-user facilities to a student to assuage privacy and safety concerns:

A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.

On a subject of this importance, process matters. A massive shift in the meaning of federal law is not something to be done by a bureaucratic agency at the stroke of a pen.

[1] U.S. Department of Education Office for Civil Rights, “Questions and Answers on Title IX and Sexual Violence” April 29, 2014, pp. 5-6, at

[2] U.S. Department of Education Office for Civil Rights, Letter, January 7, 2015, at (Exhibit B).

[3] OCR Case No. 09-12-1020 (July 24, 2013), at

[4] Resolution Agreement Between the Arcadia Unified School District, the U.S. Department of Education, Office for Civil Rights, and the U.S. Department of Justice, Civil Rights Division, OCR Case Number 09-12-1020, July 24, 2013 at

[5] OCR Case No. 09-12-1095 (October 14, 2014), at

[6] Resolution Agreement, Downey Unified School District, OCR Case No. 09-12-1095 (October 14, 2014), at

[7] Grimm v. Gloucester County School Board, Statement of Interest of the United States, Civil No. 4:15cv54 (June 29, 2015).

[8] ACLU, “G.G. v. Gloucester County School Board,” November 23, 2015 at

[9] G.G. v. Gloucester County School Board, Civil No. 4:15cv54 (Eastern Dist. Va. 2015) at

[10] G.G. v. Gloucester County School Board, Brief of Plaintiff-Appellant, No. 15-2056 (4th Cir. October 21, 2015) at

[11] Duaa Eldeib & Robert McCoppin, “Feds Reject School District’s Plan for Transgender Student, Locker Room” Chicago Tribune, October 21, 2015, at

[12] Doug Moore, “Hillsboro High Students Walk Out Over Transgender Dispute,” St. Louis Post-Dispatch, September 1, 2015, at

[13] Lauretta Brown, “Feds Forcing Schools to Adopt ‘Nondiscrimination’ for Transgender Teachers and Students,” CNS News, May 7, 2015, at

[14] Videckis v. Pepperdine University, Case No. CV-15-00298, (C.D. Cal. 2015) at

[15] Liam Stack, “Government to Reveal Colleges With Title IX Waivers,” New York Times, January 21, 2016, at

[16] U.S. Department of Education & U.S. Department of Justice, “Dear Colleague Letter on Transgender Students,” May 13, 2016, at


Law professor on how Utah balanced religious freedom, LGBT rights

This week we had the opportunity to converse with Robin Fretwell Wilson, professor at the University of Illinois College of Law. Professor Wilson talked about what Utah got right as it worked to balance religious freedom with LGBT rights in the 2015 general legislative session.

Well, I think the most remarkable thing is you have the reddest state in America extending more protections to the LGBT community than even a very blue state like New York did. In other words, Utah went the distance and protected transgender people who are not expressly protected in New York and in exchange for that, it got ahead of the curve on same-sex marriage and doesn’t find itself flat-footed like the rest of the country right now where you have marriage clerks resigning and you have state offices closing down the marriage function, which I think is wrong, and you don’t have questions about whether a religious group’s tax exemption is going to be at risk.

All that gets buttoned down in the “Utah Compromise” and what I call marriage conscience protections, as well as some innovative pieces, like if you say something in a non-professional setting – think about saying something at a religious meeting on Sunday, like “marriage is between a man and a woman,” in your view, and then walk into your real estate business on Monday – nobody can yank your real estate license. That’s new; that hasn’t been there in other states.

There has to be a forum for every Utahn to be married, in every county, but the county can dispatch that duty in a way that means no religious objectors who have been working at those offices can be fired, except for the [County] Clerk who has been elected. The [County] Clerk can basically outsource this function to any authorized celebrant in the community whether that’s a religious figure or a judge; whoever volunteers. And everybody is treated the same way; it’s seamless. So, a same-sex couple comes in and they get the same treatment as a straight couple.

Continuing, Robin Wilson noted:

Utah actually has workplace speech protections both inside and outside the workplace that are really important in the sense that they protect political and religious speech about marriage, family and sexuality. But they’re two-way-street provisions so if a kid goes to an Equality Utah parade on the weekend he can’t come into the burger joint [where he works] on Monday and be fired for that – and neither can somebody who gave $1000 to Prop 8 be fired for doing that outside the workplace. It’s nobody’s business.

Inside the workplace, there’s a bigger role for the employer to say, ‘Hey, I don’t want any kind of speech about marriage, family or sexuality’ – but if they allow it, if they don’t want to bar that because it conflicts with their essential business purposes, then they have to allow it on the same basis whether it is pro-gay marriage [or] anti-gay marriage, but to the extent that the employer wants to say, ‘Nobody’s going to be talking about that at all,’ then they can tell [his or her employees] that [they’re] not going to be able to do that.

Professor Robin Wilson then concluded with these observations:

Everybody is going to have the urgency of deciding how you’re going to deal with marriage in a world in which legislatures did not get in front of this problem. I think those marriage protections – things like saying if you did religious counseling about marriage before [the U.S. Supreme Court validated] same-sex marriage you can do the same thing after and if that meant you dealt with traditional heterosexual married people only, then you can do that after. Those kinds of things are going to need to be put in state-wide law if there are municipal laws that say otherwise or if an organization contracts with the state or is tax-exempt or for a variety of other reasons. I think the way forward there is not to try to do legislative cram-downs. In other words, just because you have the votes doesn’t make it right. It’s going to go better if everybody is trying to think about a civil society where we live together in peace.

For Sutherland Institute, I’m Dave Buer. Thanks for listening.

This post is a transcript of the Sutherland Soapbox, a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

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John Paulk and the politicization of homosexuality – Mero Moment, 6/24/14

This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

GayBusEarlier this month, the Texas Republican Party adopted as a part of its latest platform a provision in support of what is called “reparative therapy,” whereby individuals struggling with homosexuality can receive professional counseling to help distance themselves from that behavior – if that is what they truly desire.

You might wonder what any of this has to do with politics, and the answer is that homosexual activists and their progressive friends have politicized “gay rights” so much that there’s hardly anything about homosexuality that remains a matter of privacy. The Texas Republican Party included this provision in its platform precisely because homosexual activists insist that homosexuality is immutable – and, if immutable, deserving of all civil rights protections and a matter of law and politics.

Most people don’t want to talk about this stuff. After all, it’s private. Most of us believe in live and let live. But when the Texas Republican Party did its thing, the liberal online report Politico ran a big story about a homosexual man named John Paulk who, for years, had a revolving door on his sexual closet and, in his estimation, finally came to realize that none of this so-called reparative therapy actually works. The fact is we talk about this stuff because these issues are symbolic of huge cultural shifts in the American psyche about right and wrong.

As fate would have it, I first met John Paulk in 1997 at the campus of Focus on the Family in Colorado Springs. Back then, John was a bit of a cause célèbre having renounced his homosexuality, crediting faith-based reparative therapy for helping him overcome his struggle. He was big news. He even made the cover of Time magazine in 1998. But shortly after that, in 2000, his world came apart at the seams. He was photographed at a homosexual bar in Washington, D.C., and not only was his reputation in ruins, the reparative therapy he had championed, even written a book about, was seriously questioned in the media.

Frankly, it all seemed a bit odd to me at the time. Too much in the debate over “gay rights” seemed to be riding on this one guy. Not to mention, I’ve never thought that a person can “pray away” such difficult personal struggles – a person’s faith can be important, but real professional help is needed for matters like addictions and depression-related behaviors. Read more

Even things forbidden will be compulsory

Jack Phillips

Jack Phillips, Colorado baker

The state of Colorado has put out a welcome mat for recreational marijuana use but is decidedly cool to private business owners who want to act on their faith as they conduct business. Last week, the Colorado Civil Rights Commission ordered a bakery owner to make wedding cakes for same-sex marriages and to “submit quarterly reports for two years that show how he has worked to change discriminatory practices by altering company policies and training employees” and “disclose the names of any clients who are turned away.”

One irony of this is that Colorado law, approved by voters in 2006, provides that the state will not recognize same-sex marriages. So, what the state is forbidden to do, private business owners are required to do.

It would be well to remember this in the debates over discrimination laws in Utah. It’s clear that even having a law protecting marriage as the union of a husband and wife would not necessarily prevent these kinds of results here. A law protecting individual religious expression will be necessary, period, however Utah defines marriage.

Sorry, this is not ‘Jim Crow’ – Mero Moment, 4/22/14

This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

JimCrowDrinkingFountainDuring the recent oral arguments before the 10th Circuit Court of Appeals regarding the marriage laws of Utah and Oklahoma, Judge Jerome Holmes, an African-American, entertained the plaintiffs’ comparison between prohibitions against marriages based on race and prohibitions based on same-sex relationships. Basically, he asked the defendants, “What’s the difference?”

Judge Holmes referred to a 1967 U.S. Supreme Court case addressing a Virginia law preventing a black woman and a white man from marrying. The Court overturned the state law and, in the process, described the fundamental right to marry under the law. Plaintiffs challenging Utah’s marriage law argue the same thing. They claim that two men or two women (or any consenting adults) have a fundamental right to marry, and the Loving case is Exhibit A to justify their claim.

Of course, the answer to Judge Holmes’ question and to the plaintiffs’ claim is that the Loving case was about racism, not marriage. Marriage has a specific definition that Loving did not change. Marriage is between a man and a woman. The Loving case was about marriage between a man and a woman. Once the Court conquered racism, it justifiably ruled in favor of the mixed-race couple.

But this whole analogy brings up the real question: Is there a legitimate argument in favor of same-sex marriage by equating racial civil rights and “gay rights”?

From the end of the Civil War until the passage of the Voting Rights Act in 1965, black Americans were subject to degrading and unjust “Jim Crow” laws that treated them as “separate but equal.” Here are some examples of how black Americans were treated under “Jim Crow” laws:

  • White female nurses were not allowed to treat black men
  • Bus stations were required to have separate waiting areas for whites and blacks
  • Railroad passenger cars were segregated
  • Restaurants had to have separate dining areas and entrances for whites and blacks
  • Cohabitation between the races was prohibited
  • Black children were separated from white children in public schools
  • Black and white public school children couldn’t even share the same textbooks – a textbook used first by a black child was forever to be used by black children
  • Public parks were segregated
  • Mixed housing was a crime
  • Not only were lunch counters segregated, so too were telephone booths Read more

Sen. Reid responds to LDS Church statement on same-sex marriage

REIDSCI wholeheartedly support the LDS Church authorities’ call for civility among all those engaged in the public dialogue over same-sex marriage. In addition, their statement reminds all of us that faith leaders and people of religious conscience have First Amendment rights to share the public square with others, advocating their views, including views on marriage and morality. The free exercise of religious expression is indispensable for the well-being of society and the republic established to represent its interests.

— Sen. Stuart Reid

Click here to read the church’s statement.

Judge Shelby’s dubious decision: sophistic logic, pop psychology, and conclusory reasoning

scalesJudge Robert Shelby holds the dubious distinction of being the first federal judge following the U.S. Supreme Court’s DOMA decision to come to the novel conclusion that the United States Constitution requires a state to redefine marriage to include same-sex couples. The legal chaos that has resulted from this decision and the failure of the court to stay the effect of the opinion while waiting for an inevitable appeal has gotten a lot of attention. Less attention has been paid to the chaotic nature of the decision itself.

The decision is built on two serious fallacies that the court relies on to support a dramatically flawed application of two constitutional concepts that have no relevance to Utah’s marriage law.

First, Judge Shelby concludes that the “due process” clause of the 14th Amendment includes a hitherto unknown right to same-sex marriage. To make this leap, he must first redefine marriage. This he does by saying that marriage is nothing but “a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond.” Here’s the flawed logic of the opinion:

  • The Supreme Court has recognized a right to marry.
  • Marriage is government recognition of an intimate private relationship.
  • So, the government must label all intimate relationships marriages or it is violating the Constitution.

Whatever its superficial appeal, this “analysis” begs crucial questions.

Read more

The law that sounds reasonable – but isn’t

This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

Brass_scalesPartisan activists have used words like tolerance, fairness and equality to gain special rights. In the name of fairness, a growing number of Utahns welcome these advances. For instance, many Utahns think initially that the idea of a statewide nondiscrimination law based on sexual orientation and gender identity is reasonable – but it’s not.

It gives special rights to some people at the expense of other people. Ultimately, a statewide nondiscrimination law creates special rights for some that conflict with the first freedoms of everyone else – freedoms such as the freedom of speech, the freedom of conscience, the freedom of association and the right to make a living.

Perhaps you’ve heard in the news about the florist from Richland, Washington, who, because of individual conscience, would not provide services for a “gay wedding” and found herself in violation of the state nondiscrimination law?

The experiences of landlords and employers in other states don’t bode well for Utah landlords and employers. A landlord serving BYU could find herself violating a statewide nondiscrimination law if she doesn’t accommodate youth struggling with gender identity. An employee who publicly supports traditional marriage could be out of a job.

The list of real attacks against people of faith and individual conscience goes on and on.

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Dodgy social science in the Utah same-sex marriage case

graduationIn their recent submissions to a federal court judge who’s being asked to mandate same-sex marriage in Utah, the plaintiffs included a declaration from a sociologist, Charlotte Patterson, who commonly weighs in on litigation with the message that mothers and fathers are interchangeable. The problem, of course, is that there are now studies with larger sample sizes and employing better methodologies than have been conducted in the past which indicate there are real differences in outcomes for children raised by married mothers and fathers compared to those raised by same-sex couples.

For instance, a very recent Canadian study that suggested poorer educational outcomes for the latter. The plaintiffs’ expert tries to minimize this study.

We asked the author of the Canadian study, Dr. Douglas Allen of Simon Fraser University, for his response to the treatment of his work in the “expert” affidavit. Read on for his response:

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