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Voices of Dissent Part 2: Justice Scalia



This is part 2 of 4 highlighting how everyone in America has been harmed by the recent Supreme Court Decision in OBERGEFELL v. HODGES. Justice Antonin Scalia doesn’t pull any punches in a dissent that can only be described as scalian in its style.


Excerpts from the dissent of Justice Antonin Scalia in OBERGEFELL v. HODGES – June 26, 2015:

“But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.13 That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ”14 One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”15 The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.”16 Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.17

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers18 who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.20 They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.”

. . .

“The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”

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Conform Or Be Cast Out

Initially published August 15, 2014 at Modern Mormon Men

It’s a well-documented fact that Rush is the greatest rock and roll trio that ever toured the planet. Neil Peart not only has superhuman abilities as a drummer, but he’s a gifted lyricist as well. In the chorus of Subdivisions (Signals, 1982; music video here), he captures that all-to-familiar pressure to conform to those standards established by our peer group, or risk being cast out. It makes for a another excellent Rock & Roll Parable.*

(Lyrics by Neil Peart)
Sprawling on the fringes of the city
In geometric order
An insulated border
In between the bright lights
And the far unlit unknown
Growing up it all seems so one-sided
Opinions all provided
The future pre-decided
Detached and subdivided
In the mass production zone
Nowhere is the dreamer or the misfit so alone
In the high school halls
In the shopping malls
Conform or be cast out
In the basement bars
In the backs of cars
Be cool or be cast out
Any escape might help to smooth the unattractive truth
But the suburbs have no charms to soothe the restless dreams of youth
Drawn like moths we drift into the city
The timeless old attraction
Cruising for the action
Lit up like a firefly
Just to feel the living night
Some will sell their dreams for small desires
Or lose the race to rats
Get caught in ticking traps
And start to dream of somewhere
To relax their restless flight
Somewhere out of a memory of lighted streets on quiet nights …

Since humans are innately social creatures, they feel pressure to conform to the standards of the peer groups to which they belong. Every day, virtually every sentient person feels this pressure to some degree. It is not limited to young people with tattoos, stupid haircuts or ridiculous fashion statements; it goes all the way up the food chain. When an older generation describes this phenomenon in a younger generation, they call it peer pressure. It is usually (and often rightfully) portrayed as bad. Non-conformity is frequently generational, with the younger generation rejecting conformity with the older one. Accordingly, themes of non-conformity are extremely common in Rock and Roll. Watch Pink Floyd’s Another Brick in the Wall (Part 2) for Roger Water’s bold rejection of conformity over thirty years ago.

An honest look in the mirror confirms that we are all conformists at some level. I guess there would be total anarchy if it weren’t so. Even so, conformity is almost always painted in a negative light.** Non-conformity, on the other hand, is celebrated—or at least given lip service. But even non-conformists feel the pressure of their peers to adhere to the code of standards dictated by their fellow non-conformists. While pop culture says ‘be yourself’ and ‘anything goes,’ it simultaneously snarks ‘you’re still a virgin?’ or ‘you don’t have a tattoo?’  It has all become very predictable: boob jobs, glabrous pecs and abs, regulation tattoos (tribals and sleeves for guys; florals and butterflies for ladies) and only the sanctioned name brands. Though this is supposed to be a celebration of individuality, it is mimicry and conformity taken to astonishing levels. Our public self is often only skin-deep. Neil Peart nailed it in 1982 and it’s still true today:conform or be cast out.

Over the last decade the volume of the long-standing dialogue about non-conformism in the Church has increased. Pressure to conform for some has been so intense that they part ways with the Church. In most cases they leave; in some cases they are sent on their way. Either way it is tragic. It is the duty of every disciple of Jesus Christ to try and follow His example. If we can see others as He sees them, then non-conformity won’t be such a big deal. In fact, it would largely become irrelevant.

Yet at some level strict conformity has to be part of the discussion of those that would be members of this Church. Elder Jeffrey R. Holland’s 2003 General Conference talk is a masterful plea for conformity on things that matter most. His talk was primarily about the responsibility of parents to be conformist when it comes down to the foundational aspects of the gospel. When speaking of such things as devotion to the Lord Jesus Christ and the reality of the Restoration of His Church and His continued direction of its leaders, Elder Holland said:

In such basic matters of faith, prophets do not apologize for requesting unity, indeed conformity … To lead a child (or anyone else), even inadvertently, away from faithfulness, away from loyalty and bedrock belief simply because we want to be clever or independent is license no parent or any other person has been given. In matters of religion a skeptical mind is not a higher manifestation of virtue than is a believing heart.

Let’s face it, we all need to realize that the world is a diverse place. If the Church intends to be relevant globally we need to change some of our views about people that are different from the stereotypical Mormon. At the same time, there isn’t any room to compromise on the foundational principles of faith that define who we are as Latter-day Saints. Both conformist and non-conformists alike need to meet somewhere in the middle.


* We’re always looking for more Rock & Roll Parables, so submit your own as a guest post. The Bible Dictionary says: “In parables divine truth is presented by comparison with material things.” We’re going with this definition of parable, so let this be your guide in your submissions.

** The Urban Dictionary defines a conformist as “Society’s Bitch.”

 photo Line-625_zpse3e49f32.gif
Reid is an endocrinologist from Henderson, Nevada. He’s blessed with wonderful wife and three great kids. His interests are charitably characterized as eclectic: cycling, fly-fishing, history, travel and the coinage of the Flavian dynasty of Imperial Rome. With a deep-seated belief that people habitually do dumb things, he’s trying really hard to keep things positive. People are not making it any easier these days. The gospel has helped a lot. Blog:
 photo Line-625_zpse3e49f32.gifImage credit: Patrick Brady (used with permission).
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Lessons From a Tibetan Buddhist

Originally published August 11, 2014 at Modern Mormon Men
Tibetan Monk – Sera Monastery
Lhasa, Tibet

We recently returned from a trip that took us to a number of cities in China. Without a doubt, our stay in Lhasa, Tibet was a highlight. The contrast between one city teeming with 32 million people and another nestled in a valley surrounded by the Himalayas could’t be more dramatic. The blue skies, towering slopes and clean mountain air make you realize very quickly you’re not in Shanghai anymore.

Lhasa is one of the highest cities in the world at 11,800 feet above sea level. With only 68% of the oxygen found a sea level, you really feel the difference while hiking around. But I could also feel a difference in the spirituality of the Tibetan people compared to their Han countrymen. Tibetans are deeply religious, with 98% of them being Buddhist; they seem to wear it on their proverbial sleeves.

Our guide, Gyatso, was a devout Buddhist. He was determined to teach me everything there is to know about Tibetan Buddhism in three days, including the pedigrees of all 14 Dalai Lamas, 11 Panchen Lamas and each of the incarnations of the Buddha. It was all quite overwhelming. Most of it is now lost to me. But something Gyatso said was so spot-on that I wrote it down as soon as I heard it. It relates to what Buddhists call the three poisons.

These three poisons are the root of all human suffering and are toxic to both body and spirit. They include ignorance, greed and anger. Interestingly, ignorance is considered the root poison from which greed and anger arise. To Buddhists, one of life’s principal struggles is to eliminate the three poisons. Gyatso said that as we succeed in eliminating the three poisons we will be “close to enlightenment.”

Gyatsu impressed me with his commitment to be a good Buddhist and live with tolerance and compassion for others. When we encountered bad Buddhists I was impressed by his patience. Gyatso seemed to see the effects of poison, rather than a bad person in the bad example before us. He was quick to excuse them given his perspective that enlightenment was a process that took a long time to attain (several reincarnations in his mind).

Several things have impressed me since our discussions. First, I was humbled by Gyatso’s ability to blame the poison and not the person. Gyatso reminded me that enlightenment is a process that takes a long time. It’s certainly something the Lord is perfect at doing.  During his mortal ministry Jesus choose to spend his time with sinners and love them in spite of their contamination by sin. He perfected the ability to discern between the sin and the sinner. Thankfully, He seems content to wait for us to take whatever time we need to eliminate the poison of sin from our lives.

Secondly, I’ve realized that if ignorance is the root poison, then eradication of ignorance should be a primary objective of our lives. Herein lies at least one point on which tenets of Tibetan Buddhism and the LDS faith agree:

The glory of God is intelligence, or, in other words, light and truth. Light and truth forsake the evil one. (D&C; 93:36-37)

This revelation goes on to teach us to raise up our children in light and truth (D&C; 93:40), and to individually obtain “knowledge of history, and of countries, and of kingdoms, of laws of God and man” (D&C; 93:53) for the salvation of Zion. It seems that this process will go a long way to eliminating some of the poisons that contaminate us in the Church as well.

Obviously there are some pretty big differences between the religious traditions that Gyatso and I individually follow. But I find a lot of common ground in the concept of the three poisons and their toxic influence on individuals and families. I’m certain that they are major contributors to human suffering. As we succeed in eradicating them from our lives, I’m confident that we will become happier, healthier and a little closer to enlightenment.

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Persistence (Finally) Pays

Bryn Lennon, Getty Images

Mick Rogers – 2014 TDF Stage 16 
Carcassonne to Bagneres-de-Luchon

At the end of stage 11 in this year's Tour de France, Michael Rogers' advice to Andrew Talansky was “persistence wins all races.”

Mick Rogers knows a thing or two about adversity.  In 2007 he was thought of as a GC contender when he rode for T Mobile, but crashed out of the Tour with a broken collar bone.  Immediately thereafter a protracted battle with mononucleosis made him barely able to ride his bike for more than a year.  Late last year, with his form having returned, he tested positive for clenbuterol after winning a race in Japan. He was suspended by the UCI but steadfastly maintained his innocence. He was able to prove to the governing body that the positive test was the result of eating contaminated meat while competing in China, where it is commonly used in agriculture.  He was exonerated this Spring and has gone on to win two stages at the Giro d'Italia.

Mick has as been persistently working for a stage win at the Tour de France for more than a decade and it has always eluded him. He is such a classy guy and someone that I've always loved to watch compete. Today it paid off in spades.  Mick threw caution to the wind and rode flat out down a dangerous mountain to the finish against Tommy Voeckler and three others.  In his post-race interview he said:

On that descent … I just said I've been in this position too many times not to win. [Either]  I'm going to crash or I'm going to win.

He won.  It was beautiful. I hope Andy Talansky was watching from his couch at home while he recovers.

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True Grit and the Tour de France

Andy Talansk off the bike in the stage 7 sprint finish

Every summer I have a fight with myself that I predictably lose.  The ever-present doping scandels and scoundrels of professional cycling make me vow to stop watching.  Then the Tour de France begins and I cave in like a house of cards.

Andrrew Talansky breathed a giant breath of life back into US hopes in European pro peloton when this promising young American stood on the top step of the podium last month as the winner of the Criterium du Dauphine. Winners of the Dauphine are always competitive at the Tour, and frequently gone on to win it.  Andy had horrific crashes in stages 7 and 8 which forced him to abandon the race after stage 11.

It was pretty evident early in stage 11 that Andy was in rough shape. He fell off the back of the peloton and was losing time to the leaders at an alarming rate. He was in very real danger of being eliminated from the race for finishing more than 8% behind the stage winner. His earlier crashes had left with with massive amounts of road rash and severe back pain. At one point in stage 11 the pain was so bad that he had to get off the bike and sit on a guard rail for 4 minutes. At that point he had 40 miles left in the race. French TV cameras were hovering like vultures and everyone was certain that he would abandon. To my amazement he climbed back on the bike and finished the stage. Somehow, he found the inner strength to finish the stage and make the time cut.

Andy knew at that point that he hopes for any positive outcome in the race were completely blown.  But he finished the stage–even though it was all alone out there and ended up more than 30 minutes behind the leaders and dead last. It was a clinic in courage, heart and perseverance. It reminded me of one of my favorite John Wayne movies as a kid: True Grit.

At the end of the race another cycling champion talked to the race commentator and used the opportunity to speak metaphorically to Andy Talansky (who was then still out there suffering alone on the road):

“My advice is: persistence wins all races.” – Michael Rogers

Maybe Mick Rogers was speaking to Andy.  Probably he was speaking to the rest of us as well.

Andy Talansky: Courage and True Grit
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Blue Lobsters: Standing Out in a Crowd

Originally Published July 14, 2014 at Modern Mormon Men

I took a tour of the Sydney Fish Market a few years ago when I was in Australia. This fella was begging to be noticed. Blue lobsters occur at a rate of 1:2,000,000 as a result of a genetic mutation that results in an abnormal protein complexing with naturally occurring carotenoids. The resultant complex, known as crustacyanin, gives the lobster’s shell it’s cobalt blue coloration. Though truly impressive to look at, they say this peculiar lobster* tastes just like the others (and was even priced the same as his mates).

In my clinic, I have often marveled at how Mormons tend to stand out in a crowd as sharply as if they were laden with crustacyanin.  This is particularly true of the females of our species (but males are also conspicuous after just a few minutes of interaction and close observation). The complex gemish of dress, grooming, and patterns of speech are part of it; but there is also a certain presence that somehow betrays them.

 Scott Heffernan put together a pretty good list of thing that make us stand out in a crowd. Peter and Paul also described the saints as peculiar compared to the rest of the world:

But ye are a chosen generation, a royal priesthood, an holy nation, a peculiar people; that ye should shed forth the praises of him who hath called you out of darkness into his marvelous light (1 Peter 2:9) 

[Jesus Christ] gave himself for us, that he might redeem us from all iniquity, and purify unto himself a peculiar people, zealous of good works. (Titus 2:14) 

A closer look at the phrase translated from the original Greek as ‘peculiar people' in both of these Biblical passages is interesting. This phrase is probably more accurately read as 'people owned by the Lord’.  We must concede the point that part of what makes us different is who we are. But both Peter and Paul suggests that part of what makes us different is whose we are.

We (and all true followers of Christ) became the Lord’s people when he purchased us with his blood. That (and possibly a very slight blue tinge to the skin) makes us rather conspicuous. My mother used to always say ‘don’t forget who you are’ as we were going out for the evening.  Both Paul and Peter build upon that concept by saying ‘don’t forget whose you are’.

If that’s not enough to make us stand out in a crowd, then we’re doing something wrong.


* For you triviologists out there, the yellow lobster is seen at a rate of 1:30 million, split-colored lobssters 1:50 million and albino lobsters 1:100 million. 

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Opulence . . . We Has It

Originally Published at Modern Mormon Men on June 24, 2014

During our recent trip to Lithuania I discovered that Vilnius has more churches than Thailand has Buddas (… not really). The beauty of these churches was truly impressive. Their sheer opulence, along with the unmistakable Russian accent that you hear everywhere, made me think of this classic commercial from a few years ago.

St Anne’s Church – Vilnius, Lithuania
Easily my favorite (Catholic) church
The Vilnius, Lithuania LDS chapel on the left vs. St Anne’s Church on the right

Let’s face it, there is a noticeable contrast between the interior of the LDS chapel in Vilnius with the interior of even a second-rate Lithuanian church.  To compare our little chapel with something like St Anne’s Church wasn’t even close.  But what our chapel lacked in opulence we had in spirit.  You can keep the gold-encrusted religious icons, the candles, the works of art and the elaborate altarpieces. I’ll stick with the feeling I got while hearing a Lithuanian Branch President with a strong Russian accent testify of the truthfulness of the restored gospel.  So when it comes to real opulence, I can confidently say: we has it.

here for the background story on the making of this funny commercial

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Rock and Roll Parables: Queen

Initially Published at Modern Mormon Men on June 3, 2014


In 1984 Queen released I Want To Break Free along with a music video that was initially banned by MTV (… look how far MTV has evolved since then!). Though the MTV ban undoubtedly limited the popularity of this song in the US, it was a huge international hit. Thirty years later, it stands the test of time of being one of the band’s greatest hits. It therefore seems like a good choice for launching the ongoing Rock & Roll Parables series at Modern Mormon Men.

I Want To Break Free
(Lyrics by John Deacon)

I want to break free
I want to break free
I want to break free from your lies
You're so self satisfied I don't need you
I've got to break free
God knows, God knows I want to break free.

I've fallen in love
I've fallen in love for the first time
And this time I know it's for real
I've fallen in love, yeah
God knows, God knows I've fallen in love.

It's strange but it's true
I can't get over the way you love me like you do
But I have to be sure
When I walk out that door
Oh how I want to be free, baby
Oh how I want to be free,
Oh how I want to break free.

But life still goes on
I can't get used to, living without, living without,
Living without you by my side
I don't want to live alone, hey
God knows, got to make it on my own
So baby can't you see
I've got to break free.

I've got to break free
I want to break free, yeah
I want, I want, I want, I want to break free.

Sometimes a song is just a song.  Then again, sometimes it is a statement about something bigger.  It is pretty clear that the music video that accompanied I Want To Break Free was not making some grand statement.  It was a spoof on an English soap opera (Coronation Street) that was conceived by Roger Taylor, the band drummer.  Of the music video he said:

We had done some really serious, epic videos in the past, and we just thought we’d have some fun. We wanted people to know that we didn’t take ourselves too seriously, that we could still laugh at ourselves. I think we proved that.

The meaning behind the lyrics is much more mysterious, and speculation about what the song is really saying has been rampant for decades. The song was written by the band’s reclusive bassist, John Deacon. Deacon withdrew from the limelight after Freddie Mercury’s death. Rumor has it that he said the inspiration behind these lyrics ‘came from frustration’. He has never expounded further.
It is interesting to read various people’s interpretation of the lyrics. These theories range from this being a song about a bad relationship, the women’s movement, and the LGBT community which Freddie championed (John Deacon was then married; he and his wife are still together and have six kids). I think themes of addiction or mental illness could easily be added to this list.  We may never really know what frustrations spawned the lyrics. Undoubtedly they speak to people based on their individual circumstances.
When I listened to this in the car the other day, I was struck by thinking of this song as if it were a parable. The protagonist feels trapped and enslaved.  Though he is in some kind of a relationship, he knows it isn’t real love. Someone has opened his eyes and given him a taste of how it feels to be truly loved. But insecurity and separation anxiety mysteriously draw him back to the dark place from which he longs to escape. In the end, we are left wondering if he ever truly breaks free.
An argument could be made that this is a pretty good fit for the enslaving power of sin.  Satan convincingly makes grand promises which we eventually recognize to be lies–but only after we are trapped. The Savior and His atonement help us to realize that we don’t need Satan; that freedom is a real possibility.  To know Christ is truly to fall in love for the first time–once and for all. To feel His love in return is liberating. Yet for some unknown reason, we still feel drawn back to our old master and the old ways. To long for something is one thing, to truly do what it takes to realize that desire is another.
Most of us have felt the joy of God’s redeeming love in the past (see Alma 5:26). But like the guy in the song says: “life still goes on.” The great challenge is to retain that change of heart and fight off  the desire to return to our old master and his enslaving ways.
What is your take on this song? Share your own Rock & Roll Parables* as a guest post to make this an ongoing series at Modern Mormon Men.


* The Bible Dictionary says: “In parables divine truth is presented by comparison with material things.” We're going with this definition of parable, so let this be your guide in your submissions. Anything is fair game except Harry Chapin’s The Cat’s In the Cradle (we have enough to feel guilty about already).
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