Revisiting Dallin Oaks’ “Principles to Govern Possible Public Statement on Legislation Affecting Rights of Homosexuals”

The Church’s logic behind its policy concerning antidiscrimination laws for gays, as well as its steadfast opposition toward same-sex marriage, was spelled out in Dallin’s Oaks’ 1984 confidential memorandum “Principles to Govern Possible Public Statement on Legislation Affecting Rights of Homosexuals.” This document I believe got leaked a few years before the Prop 8 campaign (around 2005 or so?), but it hasn’t received nearly as much attention as I think it deserves, especially considering Oaks’ most recent talks concerning religious freedom and the current cases concerning Prop 8 and DOMA.

In the document you’ll find that one of the first things Oaks makes clear is that the Church should formalize a difference between homosexual “condition” and “practice.” In fact, Oaks underlines this difference constantly, which tells me that much of his audience did not distinguish between the two. Many of the older men he was addressing in the ’80s grew up during the McCarthy era in which homosexual thoughts were part of Satan’s chain of evil: greed <–> lust <–> masturbation <–> homosexual thoughts/practices <–> communism: lending to the decades-long drive to eradicate gayness in favor of “heterosexual normalcy.” Oaks himself was not so much interested in the question of cure or social services, but was concerned with the political and legal landscape.

He warned that as gay rights groups melded homosexual “condition” with “practice,” they would create a minority status that could eventually win over the public.

He writes:

The public will see the debate as a question of tolerance of persons who are different, like other minorities. Perceiving the issue in those terms, the public will vote for tolerance.

He then states that if…

…the legislative issue is posed in terms of whether the public has a right to exclude from certain kinds of employment persons who engage in (and will teach practices the majority wish to exclude for the good of society (such as abnormal sexual practices that present demonstrable threats to youth, public health, and procreation), the gay rights proposal will lose.

During the Prop 22 and Prop 8 campaigns, we saw this put to the test. Although discrimination in employment based on sexual orientation has been illegal in California for some time now (you can’t fire a teacher for being gay), the state still saw political commercials that showed children in schools being taught about same-sex marriage. The aim of these commercials was to convince/remind the public that same-sex marriage is not just about a “minority,” but it’s about everyone, everyone’s children, and thus about your marriage. (In my article in the current issue of Dialogue I talk about “minoritizing” versus “universalizing” discourses. Whatever your politics, it’s important to remember homosexuality isboth about a “minority” and about “everyone.”)

Since Prop 8 won, Oaks has stated that people’s ill-will is “anti-democratic” and “un-American.” But as Prop 8 (and DOMA) is moving through the court system, whereby conservatives’ “universalizing” logic is being tested legally, Oaks has interestingly shifted his focus to “protection of religious speech.”

This is just my personal inkling, but I bet Oaks was consulted for the “friends-of-the-court” briefs that make auspiciously Mormon arguments concerning the “procreative purpose” of marriage and the “non-minority” status of gays. My hunch is that while Oaks talks about “religious speech” to the public, in more private affairs he makes calculated legal arguments so that when the issue is eventually resolved in some fashion by the US Supreme Court, he can say, “I gave it my all.”

At the end of the 1984 document, Oaks makes two rather insightful observations. The first is the “irony” concerning the Church’s stance against same-sex marriage given its history of polygamy, a point which has been innumerably repeated over the years by other observers.

The second observation is important because of the current Prop 8 and DOMA cases. Oaks recognizes an inconsistency in his own position. Take, for example, the idea of not employing gays in certain spaces like schools because of the “vulnerable minds of children” (or more realistically in California today, not teaching about same-sex marriage in schools). This is what Oaks (at least Oaks in 1984) considered acceptable discrimination based on homosexual “condition” and not just homosexual “practice.” He remarks that maintaining this position is more “complicated than it first appears,” though, because if it were to be employed fully (that is, keeping children “safe” from the “culture of homosexuality”), it would require the children of gay parents be removed (including those in same-sex marriages and mixed-orientation marriages) and be put into the care of “non-parents” or a single parent. This is not something the Church should advocate.

Yet rather than trying to resolve this contradiction, Oaks says that “this will be used by the opposition to suggest that in opposing homosexual marriage the Church opposes parental rights.” Indeed, in the cases of Prop 8 and DOMA, gays can adopt in California and can wed/adopt in Massachusetts/Connecticut/etc; these families are arguing to receive state and federal benefits that come with marriage. In other words, the contradiction is on its way to being resolved.

Dallin Oaks is the most influential and learned apostle on the topic of homosexuality. If he is ever to become the prophet of the Church, one would hope that he’d take this lifelong learning, see the contradictions where they exist and as they’ve played out, and implement a paradigm change. Since he’s a lawman himself, perhaps he will see this change in the voices of Supreme Court justices. Given his past trajectory, though, and the current state of Mormon cosmology, such a change of heart would also probably require some sort of “revelation.”

20 thoughts on “Revisiting Dallin Oaks’ “Principles to Govern Possible Public Statement on Legislation Affecting Rights of Homosexuals”

  1. Unless you believe that all socially “odd” practices are created equal – I fail to see why a Church with a history of polygamy should be barred from opposing homosexual sex. The LDS opposition to homosexual sex is based on a union of male and female that is theologically fundamental.

    Homosexuality obviously finds itself at odds with that. Polygamy doesn’t.

    Apples and oranges.

  2. That said, I haven’t really found too much to get behind Oaks on with his statements on this matter. Mostly he’s just confusing me, to be honest.

  3. I fail to see why a Church with a history of polygamy should be barred from opposing homosexual sex.

    To use Oaks’ own words, the judicial precedent that defined marriage in American law to be between one man and one woman had its original emphasis on the word one (as it concerned the illegality of polygamy). Nowadays, the emphasis is on the words man and woman.

    The shape of marriage changes with time and the Church knows this intimately. The fact that the Church would engage with the state that practically threatened to topple their temples on the same question (that is, the question of the definition of marriage) by nowadays arguing that “traditional marriage” is “eternal” (thus, excluding gays from marriage) is not just “ironic,” but strikes me as disingenuous. For Mormons, isn’t “traditional marriage” and “traditional family” polygamous? If not, if they recognize the different shapes of families throughout time, what is the problem?

    Well, the problem is the theology. On the question of homosexual sex versus the theological union of a male and female, I will send you here, since I addressed you recently concerning this elsewhere.

    (I’d also suggest my Dialogue article, if you have the patience. I’ll post a copy on my site as soon as I have a pdf.)

  4. To say polygamy IS the “Mormon traditional family” is to overstate the case – since only a minority of Mormons have practiced polygamy – in any age. But if you want to say polygamy is part of the notion of traditional family for Mormonism, I don’t have much objection to that.

    It’s also a bit of jump to get from something being ironic to something being hypocritical.

    Of course, Mormons generally take it as a matter of faith that gender is something real and theologically significant – even if they have a hard time nailing down exactly what that is. So do I. But it doesn’t need to follow that the paradigm of gender comes solely from biology. I know some Mormons have done this, and I don’t consider it well-advised. Because nature is ultimately amoral – and not a great place for founding moral or normative theology.

    I do take it as a matter of intuitive faith that even gay men and women are going to have to embrace and integrate the opposite gender into their lives in SOME fashion – just like any other man and woman who seeks the ultimate unity of God. This theological outlook can and does get derailed when you focus on the symbols and sacraments of religion rather than the ultimate reality they are supposed to point to. And I do believe that sex and marriage are both symbols, and sacramental in nature.

    But I do firmly believe that men must embrace and integrate the feminine into their lives and hearts – and women must likewise integrate and embrace the masculine. If they want to enjoy the sort of unifying love – perichoresis – that God the Father himself enjoys. That doesn’t have to rule out love of men for men, or women for women – as God’s relationship with his Son makes clear. But the genders do have to meet, and I do believe they matter theologically.

    Of course, mortal symbols and sacraments are not going to be a perfect or even good fit for everyone. That’s just the hard nature of reality. We can’t get everything perfect for everyone.

    That also does not mean we should throw up our hands and not even try to make the symbol or sacrament fit better for people. But I would suggest that the mere fact of a symbol’s imperfection is not sufficient argument for completely chucking it out the window either.

    I want space for the LDS Church to continue the symbology of the male-female union. And as long as others rights are not being trampled and as long as people are being treated with fairness and decency – I don’t see why they shouldn’t have it.

  5. “since only a minority of Mormons have practiced polygamy” while technically true is nevertheless obfuscation; What percentage of the first presidency practiced polygamy in the 1890’s? What percentage of the LDS apostles?, of the stake presidents, of the bishops? Of those dictating church law (i.e. leaders) is the percentage closer to ‘a minority’ or 100%?

  6. All that says to me is that polygamy was tough to live and the leadership was leading by example. Also, you had to be financially well-off, and a highly competent and organized person to make it work. Both qualities that tend to point to leadership – in any community.

    If you actually study the accounts of this practice, it’s quite clear this practice wasn’t easy for the men to live. It placed incredibly strain on them financially, physically, and emotionally.

    Anyway, I’m not sure what this factoid has to do with anything in the first place.

  7. Financing polygamy would be difficult only up to the point that one’s umpteen children enter the workforce and form their own families. At that point, property and capital would flow toward the family name. In fact, part of the problem commentators in the East had with polygamy was that specific Mormon families were acquiring too much wealth too quickly, which wasn’t “fair.”

    The only reason Mormon polygamy halted was because of outside forces. To say it was a “strain” for people without also recognizing it was not at all a strain for many more points to a kind of bias. It would be the same as me privileging those for whom the current definition of marriage is a “strain” (such as gays and lesbians) and therefore saying the definition of marriage should be adjusted. Oh, wait…that is what I’m saying.

  8. Depends which generation of Mormon leaders you are talking about, and what you are assuming I mean by strain.

    The theory about wealth flowing into polygamous families is interesting – I’d be curious if you have any real-world data to back it up. After all, the “eastern newspapers” didn’t exactly have a great track record in accurately representing Mormonism on… well, just about anything.

  9. The equation is simple. Women and children were property back then. The money from the labor produced by these bodies would flow to the man. This is why in agrarian America people had lots of kids to farm the land if they didn’t have slaves to do the work. One could have even more kids if one was impregnating multiple women. Polygamy is different than slavery in the sense that when a boy comes of age, he would inherit the same power as his father. Girls would inherit the same “fate” as their mothers. Within a few generations, a single family would have hundreds of people. There’s a reason that the Eastern newspapers considered slavery and polygamy “twin relics of barbarism,” and it has to do with a national consensus that capitalism could only work if everyone was on the same playing field.

  10. Oh come on Alan.

    What’s with all this “meeting the same fate” crap?

    That phrase applies to just about every kid who has had a family in American history.

    The poor doomed boy in Maine was “to meet the same fate as his father” and fish for lobsters the rest of his life.

    The poor unfortunate lass in Georgia was “fated” to share her mother’s lot and be forced to churn the butter every week.

    Oh the humanity.

    Glad we don’t live in a society now where kids are so unfortunate as to “share the same fate” as their parents…

    Oh wait…

  11. Point taken. I don’t want to homogenize 19th century Mormons. But hopefully you might see how any emotional strains of polygamy would have not outweighed how much Mormon men profited from it. As I’m sure you’re aware, many feminists today would consider the current state of the Church (no female ordination, women “destined” for the home, and the way same-sex desire is sequestered) to be a continuance of Mormon men profiting, just as they did under polygamy.

  12. If you’re gonna mention Georgia, the eastern papers and polygamy, I’m gonna link to my MSP post about my favorite gg-grandfather, who left a wife and child in Georgia to pursue polygamy out west.

  13. So many gems in this memo.

    “Although homosexuals seek legislation that would guarantee non-discrimination against persons with their condition, what they really seem to crave is public approval of their practices. They want the right to proselyte their lifestyle and to practice it in public without penalty or public disapproval.”

    Oaks gets all high and mighty about gay rights activists trying to influence public opinion, but is the church any better? Does anyone doubt that (much of) the church’s motivation for Prop. 8 was to slow the turning of the tide of public approval for gay marriage? Oaks’ statement is easily mad-libbed:

    “Although [Mormons] seek legislation that would guarantee discrimination against [gays and lesbians], what they really seem to crave is public approval of their [beliefs]. They want the right to proselyte their [beliefs] and to practice it in public without penalty or public disapproval.”

    And another gem:

    “One generation of homosexual ‘marriages’ would depopulate a nation, and, if sufficiently widespread, would extinguish its people. Our marriage laws should not abet national suicide.”

    Surely Oaks is a smart enough guy to realize that allowing already-cohabitating gays to marry isn’t going to affect reproduction rates. So he’s actually concerned that, if legitimized in the eyes of the law, homosexuality will spread throughout society! I realize that this is 1984, and that Oaks is merely a product of his ignorant times. But couldn’t God have revealed to his servants, the prophets, that being gay isn’t contagious?

  14. But couldnt God have revealed to his servants, the prophets, that being gay isnt contagious?

    Even if gayness were contagious, it wouldn’t stamp out heterosexual desire. And even if being gay did stamp out heterosexual desire, it wouldn’t stamp out reproduction. Still, this ridiculous logical fallacy remains at the heart of the conservative argument against gay marriage because it’s the only “secular” argument they have.

  15. Oaks gets all high and mighty about gay rights activists trying to influence public opinion, but is the church any better? Does anyone doubt that (much of) the churchs motivation for Prop. 8 was to slow the turning of the tide of public approval for gay marriage?

    This is a central point. And the fact that Oaks’ statement about the gay agenda can so easily be applied to his own Mormon agenda…? IMHO, it’s not even accidental irony. I think Oaks views the battle over public opinion as the central fight here, and see the specific laws (regarding marriage or employment discrimination) as merely different strategies in the public opinion battle.

    Currently, a huge (and increasing) portion of the public sees the Mormon fight against gay marriage to be far more immoral than gay marriage itself. Sincerely, and not in some sort of a “we know gay marriage is bad, but we want to indulge” kind of way — but rather in an “equality is right, fighting for discrimination is deplorable” kind of way. And that’s what is making Oaks’ brain explode and smoke come out of his ears. He wants the ordinary, disinterested, law-abiding citizen to think that the CoJCoL-Ds represents the “good guys” team, and he’s angry that the CoJCoL-dS is failing to make a convincing case in the public square.

  16. He wants the ordinary, disinterested, law-abiding citizen to think that the CoJCoL-Ds represents the good guys team

    Because he really believes it does. He’s been taught it all his life, and taught it to others all his adult life. It must be hard to find himself on the wrong side of history.

  17. Because he really believes it does. Hes been taught it all his life, and taught it to others all his adult life. It must be hard to find himself on the wrong side of history.

    Actually, I think the Church has been fighting this battle long enough that they recognize that a significant chunk of the population just won’t agree with them on this topic. Also, in the public sphere, these things get filtered into two options (e.g., yes to gay marriage, no to gay marriage) that somewhat obfuscates the complexity of all the positions people take on the question of homosexuality or the question of relating intimate relationships to the state. Instead of fighting to be “right” at this point, the Church is fighting for their piece of the pluralist pie, which is why I think we’ve seen all this new language about “religious speech.”

  18. I don’t disagree with that, but it’s a little different from what I was talking about. There’s a big difference between being Good Guys who a lot of people disagree with and being Bad Guys who are on the wrong side. That’s what they just can’t get their heads around: that they’re like the white restaurant owners who didn’t want to serve black people, not like the black people who couldn’t eat in the restaurants.

  19. Instead of fighting to be right at this point, the Church is fighting for their piece of the pluralist pie, which is why I think weve seen all this new language about religious speech.

    I really don’t think that the LDS leaders in general or Oakes in particular are “fighting for their piece of the pluralist pie”. If they were, they’d acknowledge that civil laws that don’t favor their particular doctrines are not an attack on religious freedom.

  20. The thing that puzzles me about the ever shifting legal arguments made by Elder Oaks to defend the the Mormon Church’s likewise ever shifting opposition to homosexuals is his unwillingness to make his case in public. For example, if Elder Oaks truly believes that legal civil marriage will infringe on the free practice of religion, then why didn’t he make his case in the Prop 8 trial by appearing as an expert witness? The defense ended up having virtually no witnesses….only two I think, and one agreed with the plaintiffs. Elder Oaks could also have put his face on the media campaign during the Prop 8 campaign–but the MC chose and went to great lengths to represent themselves as just ‘part of the coalition’, not the main financial backer. No wonder–the campaign was based on base fear mongering mixed with complete lies.
    The Constitution gives religion a huge exemption, but also requires equal protection under the law. The framework of the Constitution’s guarantee of freedom of religion and its requirement of equal protection under the law provides for the MC’s freedom to exclude homosexuals and their right to civil equality. Elder Oaks knows this, and I think his reluctance to make his arguments to anyone other than friendly audiences–mostly Mormon ones–says more about his unwillingness to make the JRCLS a laughingstock, not to mention his alma mater, the University of Chicago.

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