Presented at the Chapman Dialogueon Same-Sex Marriage and Prop 8

at Chapman University Law SchoolFriday, October 24, 2008

* Presenter’s own professional opinions, not speaking for any institution

The Need for Prop 8, or What's the Harm?

Does Legalizing Same-Sex Marriage Really Harm Individuals, Families or Society?

by Lynn D. WardleBruce C. Hafen Professor of Law

J. Reuben Clark Law School, Brigham Young University*

Thank You

• Chapman Dialogue, Dean John Eastman, Professor Katherine Darmer, other participants

• (Chapman one of few law schools willing to sponsor discussion of important issue.)

Quick Audience Survey

1. Should an amendment (Prop 8) be adopted? to “eliminate the [new] right of same-sex couples to marry” (which

judicially-created by the California Supreme Court less than six months ago overturning a law adopted by 61% vote of the people of California which reaffirmed the historic definition of marriage as between a man and a woman)?

Yes___, No ___, Undecided __.

I. Introduction: Perspective & Context

A. Lest We Take Ourselves Too Seriously –

>>>

Mom to daughter: l honestly don't know why it’s taking you so long to get married!! By the time I was your age, I’d already been married twice."

B. Context: Seven Fundamental Flaws of the Claim for SSM

1) The issue is about Marriage! Period!2) Advocates of same-sex marriage seek to change

marriage, not marriage. 3) Calling a same-sex union a marriage does not

make it so. (Lincoln) 4) Protection of marriage is a Civil Rights Cause.5) The claim for same-sex marriage is not a claim

for tolerance.6) All Relationships are not Equal .7) We did not choose, but cannot avoid, this battle.

II. The Urgent NEED for PROP 8A. The Movement to legalize SSM in US and World

• Same-Sex Marriage Legal: Six* (/191)Nations and Three (/50) USA States: The Netherlands, Belgium, Canada, Spain, South Africa,* and Norway (2009); and US states (MA & CA & CN)

• Same-Sex Unions Equivalent to Marriage Legal in Thirteen Nations and Six US States: Denmark, Norway, Sweden, Iceland, Finland, France, Germany, Luxembourg, Slovenia, South Africa*, Andorra, Switzerland, UK, New Zealand; subord jxns (Aus. Cap. Terr.); and US (CA, CN, NH, NJ, OR, VT).

• Same-Sex Unions Registry & Some Benefits in Seven Nations and Five US states: Argentina, Columbia, Croatia, Czech Rep., Hungary, Israel, Portugal; subord jxns (South Aus, Tasmania, Victoria, recent Fed laws.); & some US (AK, DC, HI, ME & WA).

Eleven U.S. Court Rulings Mandating Same-Sex Marriage

Hawaii:; Baehr v. Miicke, 196 WL 694235 (Haw. Cir. Ct. 1996), on remand from Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993), rev’d by constitutional amendment (1998).

Alaska: Brause v. Bureau of Vital Statistics, No. 3AN-95-6562, 1998 WL 88743 at 6 (Alaska. Super. Ct., Feb. 27, 1998) reversed by constitutional amendment (1998).

Massachusetts: Goodridge v. Department of Public Health, 798 N.E.2d 941, 943, 959 Mass. 2003); In re Opinion of the Justices to the Senate, 802 N.E.2d 565, 569-71 (Mass. 2004).

Oregon: Li v. State, 2004 WL 1258167 (Or. Cir. April 20, 2004), rev’d, 110 P.3d 91 (Ore. 2005).

Washington: Castle v. State, 2004 WL 1985215, *11 (Wash.Super. Sep 07, 2004), and Andersen v. King County, 2004 WL 1738447 *3,4,11 (Wash. Super. 2004) rev’d 138 P.3d963 (Wn. 2006).

Maryland: Deane v. Conway, Case No. 24-C-04-005390 (Cir. Crt. Balt. City, Md. Jan. 20, 2006), available at http://www.baltocts.state.md.us/civil/highlighted_trials/Memorandum.pdf , rev’d Conaway v. Deane 932 A.2d 571 (Md. 2007).

New York: Hernandez v. Robles, 794 N.Y.S.2d 579 (N.Y.Sup., Feb. 4, 2005) rev’d 855 N.E.2d 1 (N.Y. 2006).

California:In re Coordination Proceeding, Special Title [Rule 1550(c)] Marriage Cases, No. 4365, 2005 WL 583129 (Cal. Super. Crt. San. Fran., Mar. 14, 2005), aff’d In re Marriage Cases, 183 P.3d 384 (Calif. 2008).

Connecticut: Kerrigan v. Commissioner of Public Health, SC 17716 (October 16, 2008) – JUST LAST WEEK!

Two Court Rulings Mandating Legalization of Same-Sex Unions Equal to Marriage

Vermont: Baker v. State, 744 A.2d 864 (Vt. 1999) (marr-equiv SSUs).

New Jersey: Lewis v. Harris, 908 A.wd 196 (N.J. 2006) (marr-equiv SSUs).

Eleven Constitutional Doctrines Invoked to Mandate

Same-Sex Marriage, Strike SMAs and DOMAs, etc.

-Equal Protection

-Substantive Due Process Privacy

-Substantive Due Process Right to Marry

-Substantive Due Process Right of Association

-Substantive Due Process Right to Expression

-Privileges & Immunities

-Full Faith & Credit

-Bill of Attainder

-Establishment of Religion

-Freedom of Religion

-Arbitrary and Irrational

III. The Responsive Movement for Constitutional Protection of Marriage

A. Protection of Marriage & Family is the Global Norm today.

Explicit constitutional protection for family and marriage is the global norm in

international and comparative constitutional law today.

The Universal Declaration of Human Rights adopted 1946, recognizes that “[t]he family

is the natural and fundamental group unit of society and is entitled to protection by

society and the State.”

145 Nations (/191) with Constitutional Provisions on Family and Marriage

(Including 83 Nations with Substantive Protections of Marriage)

Thirty-Seven of 191 Sovereign Nations Have Constitutional Provisions/Amendments Protecting Conjugal Marriage

Examples of Constitutional Texts:

Article 45 of the Cambodian Constitution: “(4) Marriage shall be conducted according to conditions

determined by law based on the principle of mutual consent between one husband and one wife.”

Article 42 of the Constitution of Columbia: the family “is formed . . . by the free decision of a man and

woman to contract matrimony . . . .”

Article 24 of the Constitution of Japan: “Marriage shall be based only on the mutual consent of both

sexes and it shall be maintained through mutual cooperation with the equal rights of husband and

wife as a basis.”

Article 110 of the Constitution of Latvia reads: “The State shall protect and support marriage—a

union between a man and a woman,…”

B. Strong Movement in the US for Constitutional Protection for Marriage

Same-Sex Marriage is explicitly prohibited by written law in 45 states (all states except Connecticut, Massachusetts, New Jersey, New Mexico, and Rhode Island*).

Most States Already Have Adopted Constitutional Amendments Protecting Conjugal Marriage & 3 More States Have Pending

Votes on SMAs

ArizonaCalifornia

Florida

27 States with marriage amendments:

3 States with pending votes (Nov. 2008):

Three Types of SMAs

Eight SMAs Protect Status of Marriage:

AK, CO, MS, MO, MN, NV, OR, TN

E.g., “To be valid or recognized in this State, a marriage may exist only between one man and one woman.” Alaska Const., Art. I, sec. 25 (1998)

*CALIF PROP 8 fits here – most basic protection

Eighteen SMAs Protect Substance of Marriage (Forbid Giving Equivalent Substance to DPs or CUs):

AL, AR, GA, ID, KS, KY, LA, MI, NB, ND, OH, OK, SC, SD, TX, UT, VI, WI

E.g., “Marriage consists only of the legal union between a man and a woman. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.” Utah Const., Art. I, sec. 29 (2004)

One SMA Creates Structural Protection for Marriage (Legislature Can Ban Same-Sex Marriage) :

HI

“The Legislature shall have the power to reserve marriage to opposite-sex couples.” Haw. Const., Art. I, sec. 23 (1998)

VOTER SUPPORT FOR STATE MARRIAGE AMENDMENTS

The average vote in favor of state marriages amendments in all of the states

combined is nearly 69%.

The popular support in the state votes has ranged from a low of 57% in favor (OR)

to 84% in favor (MS).

In only one state (AZ) have voters considered and rejected a SMA (voter confusion).

(2008 = second chance: to correct the mistake.)

Samples of Voter Support for SMAs• State Year % All % Afr-Am % Dem• GA 2004 75% 80% 64%• MI 2004 59% 59% 45%• OH 2004 62% 61% 44%• OK 2004 76% 74% 67%• TN 2006 81% 86% 72%• VA 2006 57% 56% 32%• AZ 2006 49% 61% 25%

IV. Legal Arguments for SSM are Meritless

A. Right to Marry (Privacy, Association)

Test: Deeply rooted in this history and traditions of our people

Test: Essential to the concept of ordered liberty Same-sex relations fail to meet either test.

 SSM has never been deemed a fundamental Constitutional Right.

Even Lawrence distinguished marriage from private sexual relations Distinguish qualities of conjugal marriage from consequences 

B. Equality - “Loving analogy” to antimiscegenation laws

General Colin Powell: “Skin color is a benign, non-behavioral characteristic. Sexual orientation is perhaps the most profound of the human behavioral characteristics. Comparison of the two is a common but invalid argument.”

As the Reverend Walter Fauntroy, who marched and worked with the Rev. Martin Luther King, put it: “I am one of gay rights’ strongest advocates . . . [b]ut . . . it’s a serious mistake to redefine marriage as anything other than an institution between a man and a woman.”

Loving analogy:-Race irrelevant to any legitimate state purpose in regulate marriage-Sexual behavior one of the core purposes for state regulation of marriage

-White Supremacy violates the one clear purpose of the Fourteenth Amendment-No comparable constitutional consensus re protect homosexual relations

-Loving repudiated an effort to “capture marriage” by redefining marriage (antimiscegenation) for promotion of a political-social ideology (Racial Eugenics)

-Same-Sex Marriage is similar attempt to “capture” marriage by redefining it to promote a social political ideological agenda (gay acceptance)

 

C. Equality - Gender Equality claims are invalid

Legal requirement of one man and one woman for marriage is the oldest gender equality rule in the law.

Discrimination in many respects at common law – this stands out as exception!

Justice RBGinsberg: “Physical differences between men and women, however, are enduring: `The two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.'" United States v. Virginia, 116 S.Ct. 2264, 2276 (1996)(brackets in original; quoting Ballard v. United States, 329 U.S. 187, 193 (1946)).

If women are not equally essential to the institution of marriage, what about other social institutions – e.g., education, military, law, medicine, business, etc.

Equality does not require ignoring the real differences between men and women, and between conjugal couples and same-sex couples.

David Blankenhorn, The Future of Marriage “Support for marriage is by far the weakest in countries with same-sex marriage. The countries with marriage-like civil unions show significantly more support for marriage. The two countries with only regional recognition of gay marriage (Australia and the United States) do better still on these support-for-marriage measurements, and those without either gay marriage or marriage-like civil unions do best of all.”

Andrew Sullivan contrasts male-female marriages with same sex relationships and explains, “there is more likely to be a greater understanding of the need for extramarital outlets between two men than between a man and a woman.”

Expectations of the relationship of gay couples is dramatically different from the expectation of married conjugal couples. The transformative impact of inclusion will reshape the expectaions of marriage.

“Wake Effect” Threats to Civil Rights Already Manifest

• MA: Boston Catholic Charities forced to shut down adoption services.– CA: Olive Branch Adoption agency and Adoption.com (similar rulings/results) – UK: Similar mandate, Catholic Charities negotiate compromise

• CA SCT decision: Catholic doctor legally liable (if facts) because declined ART services to a lesbian; no religious exemption

• Suit involving counselor at CDC fired for referral (‘homophobic’) • Canada, Knights of Columbus held violated law when not allow

use of hall for lesbian ceremony ($6,000 attorneys fees) • New Mexico Photographers forced into court, ordered to pay

nearly $7,000 in attorneys fees for not photographing same-sex commitment ceremony

• UK Registrar (Christian woman from Africa) wins discrimination suit v. Islington for severe harassment for asking to not register civil unions.

• MA/ UK Judges/Magistrates punished, forced to perform marriages/ ceremonies or SSC adoptions or resign

Boy Scouts denied privileges and public facilities (Philadelphia, Sn Diego, Oakland, etc.) because “morally straight” standard.

Violation of Civil Rights, cont’dFree speech rights have already been abused: effort to “silence”

oppons • -Sweden Pentacostal Pastor Ake Green • -Similar cases have been reported in Canada and England & PA &

OH (African-American administrator at college in OH).• - Ireland, ICCL warned that Catholic Bishops and clergy of hate

speech • Ohio college administrator fired after paper published op-ed

asserting gay rights not same as racial civil rights• San Francisco Bd Supervisors adopts Resolution condemning

Catholic Adoption Policy; Resolution against Evangelical Youth • Professor Chai Feldblum, Georgetown Law Center (conflicts

between sexual and religious liberty; protection of sexual liberty should prevail)

• Hyatt Hotel in San Diego – boycott calls because owner donated Prop 8– AALS partially implements boycott

Educational Abuses• Elementary & Middle School:• Parker v. Hurley (1st Cir) indoctrination Prince & Prince to 1st & 2d graders

without parental notice or right to opt out• -Adams Middle School in Brentwood cross-dressing day (cancelled)• - Mennonite school (11 students) in Quebec • A community of a dozen Mennonite families in Quebec is ready to leave

the province rather than succumb to provincial government demands that would require their children to be taught evolution and homosexuality.

• 1st graders taken on field trip to see teacher SSM in SF

• High School:• CA new HS student (Mormon) teasing-teasing back letter in file

• University:• Trinity Western University (Evangelical Free Church) lost accreditation

(Prov. SCt aff’d)• Yeshiva University student housing• Georgetown University Gay club recognition & funding

Educational Abuses, cont’d• In General:• -In Australia, the use of the terms “husband” and “wife” would be banned

under education regulations that were proposed (and later withdrawn due to parental protests)

• -In SC, Immo HS Principal resigned after being required to recognize a gay club for students; no other sex clubs; encourage sex activity

• Montgomery County Gender-beding Sex Ed • Haywood School Encourages Gay Teacher Proselyting• Class humiliates students with religious beliefs against homosexuality• Mass Lesbian Judge Orders Let Boy Wear Girls Clothes at School• Gay tolerance booklet sent to 15,000 school systems • California Teachers Association (union) $1,000,000 donation Stop Prop 8 • California Education statutes require education re: “marriage”

What institutions cultivate and protect “virtue” in society? ALL Founders agreed that “virtue” in people necessary for any republican gov’tGeorge Mason: learn virtue at “firesides and altars” (marital homes and religions)

“‘Our constitution,’ said John Adams (first vice-president and second president of the United States”, ‘was made only for a moral and religious people. It is wholly inadequate to the government of any other.’”

An Austrian observer, Francis Grund, a contemporary of Alexis de Toequeville, wrote:“The American Constitution is remarkable for its simplicity; but can only suffice a people habitually correct in their actions, and would be utterly inadequate to the wants of a different nation. Change the domestic habits of the Americans, their religious devotion, and their high respect for morality, and it will not be necessary to change a single letter in the Constitution in order to vary the whole form of their government.”

Why the In re Marriage Cases Decision Should be Overturned by Prop

8

The California Supreme Court made five types of very serious mistakes:

1) Structural – judicial legislation

2) Substantive – endanger the basic unit of society

3) Analytical - policy rhetoric and bald assumptions, not constitutional analysis but petty

political preference of four judges

4) Political – manipulation endangering integrity and independence of judiciary

5) Pandering – unlike 60 years ago in Perez, embraced rather than rejected the “capture of

marriage” like the racial ant miscegenation movement

33 International Treaties, Charters, Conventions and other Legal Documents with Provisions Concerning

Marriage and/or Families

(Research originally compiled by Scott Borrowman, J.D., 2005)