19 October 2009

Law School for Non-Lawyers 101: Today's Topic, Alleged Civil Rights

In his recent speech at BYU Idaho, senior Mormon Apostle Dallin Oaks, a former law school dean and Utah Supreme Court justice, identified marriage equality as an "alleged civil right" which he then pooh-poohed as fiction.

I dissent. Here's why. And more to the point, here's why Elder Oaks should know he's wrong too.

In order to determine whether marriage equality is a real or an "alleged" civil right, first we have to define "civil right."

A "civil right" is defined by Black's Law Dictionary as "personal, natural rights guaranteed and protected by Constitution: e.g. freedom of speech, press, freedom from discrimination, etc. Body of law dealing with natural liberties, shorn of excesses which invade equal rights of others."

In 1803, the United States Supreme Court stated the principle that "It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is." (Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)). This is a fundamental premise of all American law. A state or Federal supreme court's interpretation of the state or Federal Constitution is final; the court's decision is itself law as to the particular question at issue. Dallin Oaks knows this.

In 1967, the United States Supreme Court stated by unanimous decision that laws against mixed race marriages were unconstitutional and that marriage was a "basic civil right" (Loving v. Virginia, 388 U.S. 1 (1967)). As a decision of the United States Supreme Court, this principle applies to all fifty states. Dallin Oaks knows this.

In 2008, the California Supreme Court, which has ultimate authority to interpret the California Constitution, stated that marriage was a "fundamental right" under Article 1 of that Constitution (In Re Marriage Cases (43 Cal.4th 757 (2008)). It held that any law treating persons differently because of their sexual orientation should be subjected to the highest level of strict scrutiny and that the existing "California legislative and initiative measures limiting marriage to opposite-sex couples violate the state constitutional rights of same-sex couples and may not be used to preclude same-sex couples from marrying." Dallin Oaks knows this. I have no doubt he's read the Court's opinion.

Yet in his speech at BYU Idaho, he ignored this settled legal precedent and persisted in dismissing marriage equality as an "alleged" civil right. This was dishonest. It was not and is not an "alleged" right. It is an actual right. In California, marriage equality met every recognized qualification for a bona fide civil right. Dallin Oaks knows this. As a lawyer and an officer of the court, he has a professional obligation to acknowledge as much. Yet, knowing he was speaking to an international audience, he said the opposite. I understand that he and many others believe that marriage is by definition man/woman and that anything else is simply not "marriage" per se. But Elder Oaks has a professional obligation to uphold and state the law accurately regardless of his religious persuasion. And marriage equality has met all legal tests for a bona fide civil right. Elder Oaks knows this. Yet he still derides it as "alleged."

Bad form, counselor. You know better. I am very disappointed. And I dissent.


Urban Koda said...

Well put! Your dissent is a great deal more civil and diplomatic than what I would call it.

Grant Haws said...

Amen. What frustrates me is that people are going to just blindly accept what he says because he's Dallin Oaks. The apostle, lawyer, and judge. People are too stupid and blind to question, even just for a moment. And those who do question are going to be branded as apostates, before anyone considers that they are the ones being honest.

What frustrates me even more is that it is obvious that Dallin Oaks knows better...Yet he is knowingly deceiving, probably justifying it with rationalizations about furthering God's cause.

Doesn't sound like a representative of the Savior does it?

Anonymous said...

this is not the first time Oaks has played games with the law. at the time of the salamander letter murders, he would have been charged with obstruction of justice in any other state in attempts to save face for the church.