Utah Governor Gary Herbert suggested that state officials who declined to defend state bans on gay marriage were taking “the next step toward anarchy.” (Quoted in Scott D. Pierce, Utah Gov. Herbert Will Look Bad in Future Documentaries About Gay-Rights Movement, Salt Lake Tribune July 4, 2014.) And he rejected out of hand the attempt to characterize gay rights as being importantly related to what we refer to as the civil rights movement. He said: “What you choose to do with your sexual orientation is different in my mind than what you’re born with as far as race.” (Id.)
Fifty years ago, in 1964, Congress took a giant step forward toward ensuring equal civil rights for a race of people who had been denied those rights through American history. America had initially betrayed its own Declaration of Independence, and its assertion of the entitlement of all to be treated equally, when it adopted the slavery compromise in framing and ratifying the Constitution. Fittingly, Clay Risen published this past year, The Bill of the Century: The Epic Battle of the Civil Rights Act, a fifty year retrospective on how the Civil Rights Bill became law and began the process of confession and renewal. A striking thing for a constitutional law teacher and scholar, who was aware of the thrust of the Act but not that familiar with the factors about the history of its adoption, was Risen’s review of the critical role played by religious advocates of equal civil rights. Many religious people had felt deep pain in witnessing the enormous mistreatment of civil rights demonstrators and advocates during the years of Jim Crow’s last gasps for breath. Here is Risen’s treatment of the impact of the voices of Christian churches.
In the end, the church pressure worked where unions and civil rights groups—and Democratic presidents—could not. Republican representatives returned from their Christmas vacations complaining of the near-constant visits, letters, and phone calls from their ministers and fellow congregants urging them to support the bill. Nor could they ignore two pressing facts: nearly two thirds of all Americans supported the bill, and nearly four out of five approved of the job President Johnson was doing. The case for obstructing civil rights legislation had never been thinner.
Serious scholarship confirms that the people of the state of Utah—or at least the LDS people in general—held the same sorts of views about race and civil rights as were held generally by the American people. Armand Mauss, Faith, Folklore, and Civil Rights, in Neither White Nor Black: Mormon Scholars Confront the Race Issue in a Universal Church 149, 169 (1984). Although that was true, the LDS Church still struggled in its relationship to the Civil Rights Movement, in part based on the Church’s long-established policy and practice not to ordain blacks to the LDS priesthood. The struggle for the LDS Church was reinforced based on some of the scriptural and narrative explanations offered in justification for the practice. As of December 2013, the LDS Church has expressly disavowed what had been offered as the standard justifications for that policy. But there is hardly room for doubt that the exclusion policy and practice, combined with the sheer political conservatism of many LDS Church leaders, served as barriers to significant LDS participation in the task of inducing Congress to adopt the 1964 Civil Rights Act.
To be sure, there were some very strong advocates of the embrace of equal civil rights for all—notably, for example, President Hugh B. Brown—and for the end of the era of racial exclusion and disregard for the valid moral rights of American blacks. And the contemporary Church remains committed to securing the equal civil rights for Americans of all races. But the history cannot be erased: the exclusion policy, and especially the justifications offered in its defense, substantially undercut the capacity of the Church to contribute significantly to the important reconciliation effort represented by the Civil Rights Act.
Constitutional doctrine had only belatedly developed in the way essential to realizing the promise of equal citizenship. Laws that disadvantaged blacks came to be viewed as presumptively unconstitutional, as reflected in the Supreme Court decision in Loving v. Virginia, 388 U.S. 1 (1967). If Governor Herbert would like to consider whether the current arguments for marriage equality appropriately analogize to the case made against laws that discriminated based on race, he would be well advised to study the federal court decisions of the last year, invalidating bans on gay marriage, relying chiefly on United States v. Windsor, No. 12-307 (June 26, 2013), the 2013 Supreme Court decision invalidating the federal Defense of Marriage Act (DOMA). These courts universally find the analogy between racial discrimination and laws that disadvantage gay Americans to be quite strong. As an example, the federal court in Kentucky specifically concluded that the historical discrimination against homosexual persons is readily apparent and cannot reasonably be disputed. Love v. Beshear, W.D. Ky., No. 3-13-CV-750 (Slip Op., July 1, 2014 at 12.
A Pennsylvania court observed that in 1952 gay men and women were not allowed to enter the country or obtain citizenship, and in 1952 President Eisenhower established by executive order a ban on federal employment of gays, and even required private contractors to search out and terminate gay employees. Whitehood v. Wolf, 1:13-ev-1861, M.D. Pa. May 20, 2014, at 29. Gay conduct was a criminal offense in many states before the 1960’s, and all states punished sexual intimacy between men. Id. at 29-30. Equally critical to making a civil rights case, in the last year federal courts have agreed that being gay is basically irrelevant to the ability of relevant individuals to contribute to society and its well being. See Love, supra , at 12. During this last week, the Kentucky court went so far as to assert that “[n]o court has concluded otherwise.” Id. Courts have concluded that “sexual orientation has no relevance to a person’s capabilities as a citizen.” Whitehood, supra, at 31. Even those opposing gay marriage, observed one court, were silent on the relevance of gay identity, and this silence was thought to “speak volumes,” suggesting acceptance of the basic position that it was not truly relevant. Id. Another court emphasized the “long-held consensus of the psychological and medical communities” that “homosexuality per se implies no impairment in judgment, stability, reliability or general or social or vocational capabilities.” Phariss v. Perry, WD Tex, Cause No. 8A013-CA-00982-OLG (Feb. 26, 2014), at 22.
It is absolutely clear, of course, that no person can change the color of her skin. So racial discrimination draws an arbitrary distinction in the treatment of individuals based on an immutable characteristic. And it is here where Governor Herbert would draw a line, suggesting that individuals can choose what “to do with your sexual orientation,” which distinguishes it from the race you are born with and cannot change. Scott D. Pierce, Salt Lake Tribune July 4, 2014. But the federal courts have simply rejected this as a matter of factual finding. The court in Perry, for example, held that “sexual orientation is immutable,” especially since it “is so fundamental to a person’s identity that one ought not be forced to choose between one’s sexual orientation and one’s rights as an individual even if one could make a choice.” Perry, supra, Slip Op. at 23. The court there concluded:
Furthermore, the scientific consensus is that sexual orientation is an immutable characteristic. See Pedersen, 881 F. Supp. 2d at 320-21 (finding that the immutability of sexual orientation "is supported by studies which document the prevalence of long-lasting and committed relationships between same-sex couples as an indication of the enduring nature of the characteristic."); Perry, 704 F. Supp. 2d at 966 ("No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.")
Id. These findings and conclusions are precisely why the Tenth Circuit decision in Kitchen v. Herbert, No. 13-4178 ( June 25, 2014), is likely to be upheld on appeal, and the analogy to racial discrimination affirmed.