An Amicus Brief in Support of Gay Marriage—From Utah?

Among the amicus curiae or “friend of the court” briefs filed with the US Supreme Court last week in preparation for its hearing of the legal challenge to California’s Proposition 8 was a groundbreaking brief signed by more than twenty-five “red state” LGBT advocacy groups, including the Campaign for Southern Equality.

And where was it authored? Utah. By a team that included an active member of the Church of Jesus Christ of Latter-day Saints—a Mormon.

I spoke to John Mackay, an attorney at the Salt Lake City firm of Ray, Quinney, & Nebeker, who is among the brief’s authors.


With this brief, a legal team from Utah is taking lead in articulating the nature of the challenges LGBT people in conservative areas of the country face.

Absolutely. That’s one of the things we are most proud of. The Utah Pride Center has partnered with the Campaign for Southern Equality and 28 equality groups in 23 states to shape the national discussion on these issues. The Utah Pride Center wanted to tell the story of what it’s like to be gay in Utah and live under a system we describe as “de jure denigration,” but we also wanted to take it a step further so that it could speak for other states and regions with similar laws. We want the court to view it in relationship to the segregation that occurred in the South. From a legal perspective, there are similar themes.

You are a self-identified active LDS person. How did you come to be involved?

I have a lot of respect for my co-authors, so I was very glad to participate, but more than that I have some deep feelings about fairness and human dignity. What’s at issue here is more than marriage or the label “marriage.” It really is about protecting people’s liberty, giving them the hope and human dignity that comes from being treated equally under the law. In places like Utah, there is a system of laws that chips away at hope and dignity at every step in the life of a gay man or lesbian woman. And to me, that was compelling enough, but it was also compelling to me that those are the same spiritual principles I identify within my Mormon faith. We care about human dignity and potential; we care about allowing people the freedom to plant their spiritual roots. I am gratified that the tenor and the tone of what we’re hearing from the LDS Church now—like its new website—reflects that. 

Have you discussed your role in the brief with members of your Mormon community?

I’m taking this gradually. People are open and warm. I think in their hearts members of the LDS Church get it; they want to be loving and accepting. That’s what I have found in my day-to-day experience among Mormon people. Of course, there will always be tension between that Mormon ethic of caring and the fact that the LDS Church is taking an opposing position in this case.

The LDS Church has filed an amicus brief for the other side.


The brief states, “Utah’s system of laws ensures that gay students may never hear a school- or state-sponsored message such as ‘you are not alone,’ ‘you didn’t do anything wrong,’ and you are valued ‘just the way you are.’” The whole brief is built around this idea that policies send very personal messages to LGBT people.

Yes. As we would talk to Utah Pride and try to convey in legal terms what the message was, it was clear that we wanted to stress to the court that we’re dealing with human lives, literally, and how people are made to feel under all these laws.

You also characterize as “legislative bullying” this coordinated system of religious, political, and social opposition that has made it impossible, for example, for LGBT fair housing and employment non-discrimination statutes to make it out of legislative committee in Utah.

Yes, this is something that the Utah Pride Center formulated in an effort to articulate the kind of context gay people in Utah live in and its impacts on their lives.

And finally, you use the term “pockets of prejudice” to refer to geographic locales like Utah where the combination of religious, political, and social forces creates “legislative bullying.” What is the best outcome this case can produce for gay people in a place like Utah?

We hope for heightened scrutiny of laws pertaining to LGBT people in places where there has been historic powerlessness. Whether or not discrimination was driven by the inertia of uninformed but well-intentioned people or by outright bigotry, heightened scrutiny based in constitutional principles like equal protection under the law can trickle down and apply to all kinds of laws. That’s our big ask. Now, the court could go in a number of ways that don’t get us all the way there. But we’re hopeful that the court will see this as an issue whose time has come. That’s what the case is about: that human dignity and liberty are constitutional principles. And this brief for me is a spiritual treatise that is about finding the overlap between those constitutional principles and religious principles.