Lynn D. Wardle The Bruce C. Hafen Professor of Law Brigham Young University Provo, UT USA Prepared for the

1. International Recognition of Same-Sex Marriages and Battles in the United States Re: DOMA and Forced Interstate Recognition of Same-Sex Marriagesor- Involuntary Imports: International Marriage Recognition, the Defense of Marriage Act (DOMA), Three Forms of Federalism, and “Thick” and “Thin” Conceptions of Marriage Lynn D. Wardle The Bruce C. Hafen Professor of Law Brigham Young University Provo, UT USA Prepared for the International Association of Comparative & Private International Law May 7, 2012, University of Vienna, Austria

2. I. Introduction Following the Introduction, this paper has four parts & four purposes. II. The dilemma of transportability of marriage status, especially the exportation of same-sex marriage from one state into another state where it is not valid or desired or recognized. IIIUS interstate validity and recognition of same-sex marriage; DOMA; the horizontal and vertical dimensions of DOMA, and federalism (esp. federalism in family law), as it relates to DOMA, particularly Section Three. • International validity and recognitionof same-sex marriage V. The (non-PIL) importance of the unique and uniquely important relationship and institution of marriage as the gender-integrating union of man and woman, and why that “thick,” pervasive meaning marriage deserves unique, special protection and unique exclusive recognition in law, and why the “thin” substitute version of “marriage-lite” must be rejected.

3. Audience Survey • How many believe that same-sex marriage should be legalized in your state? Y____ N____ Un____ • How many believe that same-sex civil unions (largely equivalent to marriage) should be legalized in your state? Y____ N____ Un____ • How many believe that marriagesvalid in other jurisdictions should presumed to be recognized in your own jurisdiction? Subject to ordre public / strong policy exceptions? Y____ N____ Un____ • How many believe that same-sex marriages valid in other jurisdictions should be recognized in your own jurisdiction? Y____ N____ Un____ • How many believe that same-sex civil unionsvalid in other jurisdictions should be recognized? Y____ N____ Un____ • How many believe that dual-gender, gender-integrating marriage is a fundamental human right deserving of special constitutional protection? Y____ N____ Un____

4. II. The Dilemma of the Transportability of Same-Sex Marriage Status The Dilemma: Two Recent Examples Canadian court denies divorce to lesbian couple from UK and FL, holding that their same-sex marriage in Canada was not valid. Furor. (Spectacle of politicians tripping over each other in their rush to change the law.) Parents of attorney Sarah Farley vs. Jennifer Tobits to receive Retirement funds of deceased Sarah; named beneficiaries (Parents) vs. surviving spouse (Jennifer) of Canadian same-sex marriage between couple from Pennsylvania (does not allow or regognize SSM).

5. II. The Dilemma of the Transportability of Same-Sex Marriage Status It is reasonable for people to want their important personal relationships to be recognized in other jurisdictions. It is equally reasonable for each sovereign to wish to determine for itself what kinds of relationships it will allow and recognize, and how. Marriages are of such profound importance to such significant public interests that all states regulate marriage and marriage recognition. Nowhere is marriage solely a private unregulated matter (though some states delegate much regulation to religions). Procedural rules of Private International Law are the battleground for transportation of personal marital status, and for the political quest to export / import controversial forms of marital status (such as SSM).

6. II. Dilemma (cont’d) As Justice Jackson stated in his dissent in Estin v. Estin,“If there is one thing that the people are entitled to expect from their lawmakers, it is rules of law that will enable individuals to tell whether they are married and, if so, to whom.” NB: Justice Jackson did not say that people are entitled to expect rules that will make valid whatever marriages they contract, wherever they contract them, or with whomever they contract them. Rather, he declared that the people are entitled to know the rules that will determine marriage validity and recognition. That gives them the ability to plan their lives and structure their conduct with some significant measure of predictability.

7. III. Interstate Recognition of SSM in the USA (and DOMA) Historical Lex Loci Celebrationis rule in USA for requirements and incidental regulations of marriage. The general rule of marriage recognition in the US for centuries has been: “A marriage valid where formed, will be recognized as valid in all other U.S. states” (true of inter-state and international conflicts). Exception: Unless if violates a strong public policy of the second state. Many examples of both the general rule and of exceptions: under-age marriages, consanguinous marriages, inter-racial marriages, polygamous marriages (rare, Singh’s Estate), remarriage restrictions, etc. Deference to each (sov) state’s control of its own marriage policy given priority.

8. III. Interstate Recognition of SSM, cont’d Full Faith and Credit and Marriage Recognition U.S. Const’n., art. IV, sec. 1: “Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State; And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” a. Facially seems to require mandatory recognition. b. Never intended, understood or interpreted as absolute some public policy exception permitted (very narrow for judgments). c. E.g. history of states declining to recognize some marriages from other states upheld; also adoptions (adults), etc. d. The stronger the state/local interest the greater latitude for the scope of the “public policy” exception permitted.

9. III. Interstate Recognition of SSM, cont’d The Rise of the Movement to Legalize SSM, FF&C, & DOMA Movement to legalize SSM revived in early 1990s. Baehr v. Lewin/Miike (HI): 1990 suit by SSCs in HI trial court challenging HI traditional marriage law allow only male-female couples to marry 1991 dismissal (judgment on pleadings) as matter of law 1993 HI Supreme Court remanded, suggesting possible violation of Equal Protection (ERA) provision of state constitution. 1996 trial court rules that limiting marriage to male-female couples violates Equality Provision of Hawaii Constitution. 1997 Legislature proposes SMA amendment that only legislature can define marriage. 1998 Hawaii SMA passes with 69.2% of popular vote at ballot. 1999 Hawaii Supreme Court reverses Baehr under SMA. Gay marriage activists wrote many L Rev articles claiming if HI legalizes SSM, every other state will have to recognize SSM / FF&C. (“sink”)

10. III. Interstate Recognition of SSM (cont’d) • In response to claims of forced exportation of SSM, the Defense of Marriage Act was enacted in 1996. • The votes in both houses of Congress in favor of DOMA were overwhelming and bi-partisan; the House of Representatives passed DOMA by a vote of 342 to 67, and the Senate approved DOMA by a vote of 85 to 14. • President Clinton signed DOMA without any threat of veto or even any public criticisms of or objection to the bill. His DOJ said it was constitut’l. (Cont’d )

11. III. Interstate Recognition of SSM in the USA (and DOMA) Defense of Marriage Act (1996) (DOMA) SECTION 2: (28 U.S.C. § 1738C) "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.". SECTION 3 (1 U.S.C. § 7)Definition of 'marriage' and 'spouse' "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.".

12. III. Interstate Recognition of SSM (cont’d) • DOMA was an express response to efforts to forcibly export same-sex marriage into states where it is prohibited. It was intended to protect “who decides” whether/when SSM will be recognized by the States / Federal Government. It is • DOMA did not change the existing law regarding horizontal (state-to-state) or vertical (state-federal) recognition of domestic relationships, but merely codified the long-established federal choice of law rule.

13. III. Interstate Recognition & DOMA • DOMA Purpose: to answer the question: “Who decides whether SSM is recognized? • DOMA is primarily a structural Act. Purpose: to respond to threats to the constitutional structure of the allocation of power to decide public policy (SSM advocates were asserting that if any state legalized SSM all states and federal agencies and courts would have to recognize those SSMs). • Thus, DOMA protects the horizontal and vertical allocation of authority to states and to Congress to decide the SSM recognition issue. • DOMA is primarily substantively neutral (all sec 2, status quo sec 3.) • DOMA is consistent with long-established US and American State marriage recognition rules, and with general international marriage recognition rules

14. III. Interstate Recognition of SSM (cont’d) • Section 2 codified 210 years of horizontal (interstate) marriage recognition FF&C practice. • Claims that FF&C would require states to reocognize SSMs from other states were unfounded and insubstantial. • As Dean Borchersobserved: “Sometimes ideas gain momentum through repetition. The idea that the Full Faith and Credit Clause would require national recognition of a same-sex marriage solemnized by one state is apparently one of them. …[However,] this is a very dubious assertion.” • The patchwork quilt resulting is common (and desired and healthy) in federal systems. It respects diversity and local or specific control.

15. III. Interstate Recognition & DOMA(cont’d) • Federalism is the source of the problem re: Section 3. • The real questions is whether American style of federalism (1) should be replaced with a more robust form of nationalism in family law, or (2) replaced with a more robust form of state’s rights in family law, or (3) our uniquely robust shared-federalism system should be preserved. • American-style shared or balanced federalism has the constant potential for some conflict and inconsistency between how marriage is defined by the national government for purposes federal laws and how it is defined locally for purposes of state laws, but it protects dispersion of power and preserves more influence for local and specific interests and values.

16. III. Federalism in Family Law in DOMA(cont’d) • The Supreme Court has declared: “[O]ur federalism is not Europe’s. It is ‘the unique contribution of the Framers to political science and political theory.’ Printz(AJK) • “[American] Federalism was our Nation’s own discovery. The Framers split the atom of sovereignty.” U.S. Term Limits (AJK)

17. III. Interstate Recognition & DOMA (cont’d) Vertical Federalism and Challenges to Section Three of DOMA Section Three of DOMA defines what marriage means for purposes of federal law only. It does not impose them upon any state. Not violate but confirm federalism. Congressional definition for federal law 200 years old. (19th century Homestead Act decisions, 20th century federal retirement vs community property decisions) Section 3 sounds substantive? Not really. Just codified existing law. Structural impact = huge. Tells Judiciary and Executive Branches & States: Congress decides! Congress has, in considering and will make exceptions, carefully, case-by-case. Consistent with those bills, & proposed bills (DPBOA & HR 3567-Nadler)

18. III. Federalism in Family Law in DOMA • The purpose of both Section 2 & Section 3 of DOMA is to preserve federalism (horizontal and vertical). States define for state law and domestic relations generally, Congress defines terms for federal law and specific programs. • It is ironic that opponents of Section Three of DOMA now are arguing in court that federalism is weakened or impaired by DOMA. Their goal is to pressure, coerce, and force the states into legalizing same-sex marriage by the use of federal power. • However, the dilemma is two-edged.

19. III. Interstate Recognition of SSM (cont’d) • The nice thing about legislation (like DOMA) is that it can be changed to reflect changing social values, if those preferences really have changed. • Times have changed. Today (2012) many in the Democratic Party (but not all) want to repeal DOMA. Many in the Republican Party (but not all) want to keep DOMA. Congress overall still supports DOMA. • In 2011 President Obama and AG Holder announce that they will NOT defend DOMA. (Before Obama took office, DOMA challenged five times, upheld successfully by DOJ in every case. But for political reasons Obama and his DOJ took “dive,’ refused assert successful defenses, tepid defense, lost and now refuses to defend DOMA (a clear political reward to gay activists who support him). • Unlikely to be a big election issue (FF&C/PIC is too complex)

20. IV. Comparative SSM Recognition The Legal Status of Same-Sex Unions in the USA and Globally 10 May 2012 A. Legal Allowance of Same-Sex Unions in the USA (50 states + DC): * Same-Sex Marriage Legal: Six (6) USA States (+ DC) (+2 of 564 U.S. Indian tribes) Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York (and the District of Columbia) (+Washington (June 12) & Maryland (2013) if no ballot veto; formerly CA (5 mos). Same-Sex Unions Equivalent to Marriage Recognized in Ten (10) US States: California, Nevada, New Jersey, Oregon, Washington,* Illinois, Hawaii, Delaware, Maryland,* & RI (IL, HI DE & RI in 2011; WA & MD SSM laws passed but may be blocked before effective) Same-Sex Unions Registry & Specific, Limited Benefits in Three (3) More US Jurisdictions Colorado, Maine, and Wisconsin. Compare Status of Same-Sex Relationships Nationwide, Lambda Legal, August 19, 2011, available at http://www.lambdalegal.org/publications/articles/nationwide-status-same-sex-relationships.html (last viewed 20 August 2011). *Compare Status of Same-Sex Relationships Nationwide, Lambda Legal, August 19, 2011, available at http://www.lambdalegal.org/publications/articles/nationwide-status-same-sex-relationships.html (last viewed 20 August 2011).

21. IV. Comparative SSM Recognition • Legal Rejection of Same-Sex Unions in the USA: Same-Sex Marriage Prohibited by State Constitutional Amendment in Thirty-one (31) States (62%): Alaska, Alabama, Arkansas, Arizona, California, Colorado, Florida, Georgia, Hawaii, Idaho, Kentucky, Kansas, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina (2012), North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin. (+ Maine “People’s Veto” vote overturned legislation legalizing SSM in ME before the law took effect) (SMA passed in May 2012 in NC (61%) & will be on ballot in in 2012 MN &??; good chance for measures to allow voters to vote on SMAs in WY, IN, & IA; & to repeal SSM in NH) Same-Sex Civil Unions Equivalent to Marriage Recognition Prohibited by State Constitutional Amendment in Twenty (20) USA States (40%): Alabama, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and Wisconsin. Same-Sex Marriage Denied by Constitution, Statute or Appellate Decision in at least Forty (40) States (All but states with same-sex marriage and New Mexico and Rhode Island) In all 32 states in which same-sex marriage has been on the ballot the people (including Maine where in 2009 a “people’s veto” of the legislature’s approval of same-sex marriage was rejected by the “people’s veto”) have decisively rejected same-sex marriage. The total vote rejecting same-sex marriage in votes on the 31 state marriage amendments combined is 63%.

22. IV. Comparative SSM RecognitionThree Types of State Marriage Amendments Ten SMAs Protect Status of Marriage: AK, AZ, CA, 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) Twenty SMAs Protect Substance of Marriage (Forbid Giving Equivalent Substance to DPs or CUs): AL, AR, FL, 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 Protects Government Structure to define marr (Legisla. Can Ban SSM): HI “The Legislature shall have the power to reserve marriage to opposite-sex couples.” Haw. Const., Art. I, sec. 23 (1998) (Overall voter approval rates for state marriage amendment is 63%)

23. IV. Comparative SSM Recognition • The Legal Status of Same-Sex Unions in the Globally • Legal Status – 10 May 2012 • A. Legal Allowance of Same-Sex Unions Globally (of 193 Nations / UN): • Same-Sex Marriage Permitted in Nine (9) Nations: • The Netherlands, Belgium, Canada, Spain, Norway, Sweden, Portugal, Iceland, and Argentina (SSM allowed in sub-jurisdictions of some other nations (e.g., the USA, Mexico (City); by specific-case court decisions in some nations (BRZ); some nations recognize but do not allow SSM; some allow both SSM and other unions.) • Same-Sex Unions Equivalent to Marriage Allowed in Seventeen (17) Other Nations: • Denmark, Ecuador, Finland, France, Germany, Luxembourg, South Africa, Slovenia, Andorra, Brazil, Switzerland, UK, Uruguay, New Zealand, Austria, Ireland, Liechtenstein (and some sub-jurisdictions in other nations such as Australia, the USA, etc.) • Same-Sex Partnerships (Formal but Not Equal to Marriage) Allowed in Seven (7) + or More Nations:* Austria, Australia, Columbia, Croatia, Czech Republic, Hungary, Israel. (* = per Wikipedia and other journalistic quality sources; also in some former colonies (Fr. Guinea?), etc.)

24. B. Global rejection of SSM At Least Forty-six (45) of 193 Sovereign Nations (24%) Have Constitutional Provisions Explicitly or Implicitly Defining Marriage as Union of Man and Woman Constitutions of Armenia (art. 32), Azerbaijan (art. 34), Belarus (art. 32), Bolivia (art. 63), Brazil (art. 226), Bulgaria (art. 46), Burkina Faso (art. 23), Burundi (art. 29), Cambodia (art. 45), Cameroon (art. 16), China (art. 49), Columbia (art. 42), Cuba (art. 43), Democratic Republic of Congo (art. 40), Ecuador (art. 38), Eritrea (art. 22), Ethiopia (art. 34), Gambia (art. 27), Honduras (art. 112), Hungary (art. M, Constitution/Basic Law of Hungary (25 April 2011) (effective Jan. 2012); Japan (art. 24), Latvia (art. 110 - Dec. 2005), Lithuania (art. 31), Malawi (art. 22), Moldova (art. 48), Mongolia (art. 16), Montenegro (art. 71), Namibia (art. 14), Nicaragua (art. 72), Panama (art. 58), Paraguay (arts. 49, 51, 52), Peru (art. 5), Poland (art. 18), Romania (art. 44), Rwanda (art. 26), Serbia (art. 62), Seychelles (art. 32), Spain (art. 32, disregarded or overturned by legislation),* Sudan (art. 15), Suriname (art. 35), Swaziland Constitution (art. 27), Tajiksistan (art. 33), Turkmenistan (art. 25), Uganda (art. 31), Ukraine (ark. 51), Venezuela (art. 77), Vietnam (art. 64). See also Hong Kong Bill of Rights of 1991 (art. 19); Somalia (art. 2.7, draft Consti.); 12 of these imply (“men and women”). (* = inconsistent with Spanish law allowing same-sex marriage); Examples: Article 110, Constitution of Latvia: “The State shall protect and support marriage—a union between a man and a woman,…”Article 42, Constitution of Columbia: the family “is formed . . . by the free decision of a man and woman to contract matrimony . . . .” Article 24, 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. . . .”

25. Global (US) Progress of Same-Sex Marriage, and Marriage Equivalent Civil Unions or Partnerships, 1985-2012.

26. IV. Comparative SSM Recognition35 International Treaties, Charters, Conventions and other Legal Documents with Provisions Concerning Marriage and/or Families(Research originally compiled by Scott Borrowman, J.D., 2005) • Convention on the Prevention and Punishment of the Crime of Genocide • Convention relating to the Status of Refugees • Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery • International Convention on the Elimination of all Forms of Racial Discrimination • Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages • Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration on Marriages • International Covenant on Civil and Political Rights • International Covenant on Economic, Social and Cultural Rights • Convention on the Elimination of All Forms of Discrimination against Women . . . • ETC.

27. Gay marriage is not a human right, according to European ruling The Telegraph (UK) By Donna Bowater 6:29AM GMT 21 Mar 2012 The ruling follows the launch of a consultation over gay marriage in the UK, in which the Equalities Minister promised a change in the law. The European Court of Human Rights reached the decision in the case of a lesbian couple in a civil partnership in France, who complained they would not be allowed to adopt a child as a couple, according to the Daily Mail. The pair, Valerie Gas and Nathalie Dubois, had tried to establish marriage rights under anti-discrimination laws but the judges said there had been no discrimination. The court heard how the women had wanted Miss Gas to be allowed to adopt Miss Dubois's 11 year-old daughter. But the judges in Strasbourg said: "The European Convention on Human Rights does not require member states’ governments to grant same-sex couples access to marriage." Source: http://www.telegraph.co.uk/news/religion/9157029/Gay-marriage-is-not-a-human-right-according-to-European-ruling.html See also http://pcwatch.blogspot.com/2012/03/homosexual-marriage-is-not-human-right.html

28. IV. Comparative SSM Recognition International Comparative Assessment of Recognition of Same-Sex Marriages Two predominant private international law systems Personal law Lexpatriae(old favorite) Lexdomicilii(new favorite) Lex loci celebrationis Ordre public exception in all regimes Foreign SSM likely be recognized as marr in c. 5%; possibly as CUs in c. 8%, recognized for narrow purposes in some (5%) others. Not recognized as marriages in 95%, not recognized at all in over 80%. Treaties or Conventions could change. Proposals in EU & EC. None yet adopted. Hague Marriage Convention (~ analysis) & dead letter (3 nations)

29. IV. Comparative SSM Recognition DOMA fits well into global picture of interjurisdictional marriage recognition Conclusion: as matter of inter-state marriage recognition principles, DOMA got it right. DOMA protected right of states (and Congress) to decide for themselves an issue (interstate / federal recognition of SSM) that 60% of states think is very important issue and have decided constitutionally by voter- approved amentments in very important way.

30. IV. Comparative I-St SSM Recognition Marriage Recognition Under Section Two of DOMA in Interstate Comparative Conflicts Analysis 7 States & DC that allow SSM are likely to recognize o/o/st SSMs 9 States that do not allow SSM but permit SSCUs Not likely to recognize SSM but likely treat as CUs 30 states have state constitutional amendments to protect marriage (29 substantive, 1 structural) Almost certain to NOT recognize SSM generally May recognize for specific benefit (Singh Est CA)

31. What remains are a few “bleeding Kansas”-type “border states” that have neither adopted marriage amendments rejecting same-sex marriage, nor legalized same-sex marriage or same-sex civil unions. Some have statutes protecting dual-gender marriage, but uncertain for choice of law (repeal/NH, declare unconstl/IA, ignore/MD AG) Of greatest interest to Conflict of Laws scholars. Likely some will/will not recognize – judical politics not choice of law principles probably (sadly) will control, but if legislative = appropriate (democratic)

32. V. Why Unique, Exclusive Protection of Marriage As a Dual-Gender Relationship Is Rational and Compelling The meaning of marriage is changing from a “thick” and deep conception to a “thin” and shallow conceptualization. The notions that the crux and heart of marriage is romantic or sexual attraction dilutes and diminishes the core social building block. Today we need a “thick” and full and complete concept of marriage rather than a “think” and weak and idiosyncratic conception of marriage. In legal policy the ideal of romanticism “marry whomever he or she wants” quickly devolves into incoherence. (cont’d)

33. IV. Why Unique, Exclusive Protection of Marriage As a Dual-Gender Relationship Is Rational and Compelling (cont’d) The Woody Allen-Mia Farrow-Soon Yi Previn affair is a notable example of the kind of destruction that results from the pursuit of unconstrained personal romanticism. Woody Allen and Mia Farrow lived together for many years out of wedlock, had a child together, and Allen both adopted at least one of Farrow’s children. Later he began an affair with another of Mia Farrow’s adopted children, teenager Soon Yi Previn. When that relationship came to light, Allen explained his behavior with the quip, “the heart wants what the heart wants.” Susan Bandes: At some point “these variables render the translation into legal context impossible.”

36. -Gender-Integration Complementarity and the Uniqueness of Marriage The male-and-female requirement is essential to the jurisprudence of marriage. Three of them are: • From some feminist perspectives, gender-integrating marriage is important because it acknowledges the “mixity” of humanity and it prevents diminution of protection/recognition of the contributions of women. • Male-female marriages aredifferent from same-sex unions because they are gender-integrated and implement the important value of inclusion of and respect for the different contributions of both men and women. • From a utilitarian perspective, same-sex marriage is ill-advised because marriage has been customized over millennia for male-female unions, and to push same-sex relations in that dual-gender mold of marriage will frustrate qualities and deny needs of such couples.

37. IV. Why Unique Protection for Gender-Integrating Marriage? 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)). Recognition of uniqueness of gender-integrating marriage further equal protection. If genders are fully fungible and women / men contributions are not unique and essential to the institution of marriage, will not women/men (opposite gender inclusion and integration) also be deemed not essential in other social institutions – e.g., education, military, law, medicine, business, etc.? Equality does not require ignoring the profound difference between men & women. Men & Women are different, and union of man and woman creates a different union than 2 Men or 2 Women

38. Dual-Gender Marriage Laws Do Not Violate Equal Protection No heightened scrutiny (no fundament right, suspect classification) but even if Equality - “Loving analogy” to racial discrimination, antimiscegenation laws -Race irrelevant to any legitimate state purpose in regulate marriage -Sexual behavior one of the core purposes for state regulation of marriage General Colin Powell declared (re: gays in the military): “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.” -White Supremacy and the one clear purpose of the Fourteenth Amendment -No comparable constitutional consensus re homosexual relations -Loving repudiated an effort to “capture marriage” for promotion of a political social movement (then - White Supremacy; Racial Eugenics; now – another ) -SSM movement = latest political movements seeking to “capture” marriage in order to promote a social agenda

39. The Constitutional Claims for Same-Sex Marriage are weak and inadequate (concept, doctrine & politics). There is No Fundamental Right to S-S Marriage Test FundaRt Marry: Deeply rooted in this history and traditions of our people, and/or Essential to the concept of ordered liberty Same-sex relations fail to meet both tests. SSM has never been deemed a fundamental Constitutional Right. Even Lawrence distinguished marriage from private sexual relations. Distinguish qualities & consequences of of conjugal marriage from SSM Major Ongoing Global movement to protect conjugal marriage as a basic Human Right European Court of Human Rights rejects claim to SSM under ECHR (2010)

40. The Constitutional Structural Implications of SSMThe “Constitutions” of nations rests on the “constitution”of the nation. The marital family is the social institution most essential to foster and perpetuate the civicvirtue (responsibility, morality, self-government, willingness to sacrifice self-interest for the public good) necessary for our Constitutional Republic to function and survive.

41. Foundations and Infrastructure Matter: When Marriage and Marital Families Disintegrate, Society and Individuals Suffer. -Marriage is the foundation and the substructure of society. -Family is the core infrastructure of society. -Marital families create most social capital. -We derive our “root paradigms” from our families. Marriage undergirds strong families which are the first schoolrooms of democracy (or of anarchy or of hierarchy or of greed)

42. Austrian social commentator, Francis Grund, contemporary of Alexis de Tocqueville 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.” -Francis J. Grund, The Americans, in the Moral, Social, and Political Relations 171 (1837) Virtue, Marriage & Constitution Marriage (marital families) and Religions were deemed principal nurturers of Virture. John Adams: “The foundation of national morality must be laid in private families . . . “ -4 Diary and Autobiography of John Adams 123 (L.H. Butterfield, et al. ed. 1961) “American republicans saw “marriage as a training ground of citizenly virtue.” Marriage “served as a ‘school of affection’ where citizens would learn to car about others.” -Nancy F. Cott, Public Vows, A History of Marriage and the Nation 18-20 (2000) Linda Kerber: At times it seems as though the fate of the republic rested on the shoulders of the women of America. Wives were to discipline their husband to be good citizens and raise their sons to be good citizens.

43. The Corrosive Effects of Illegitimate Methods to Achieve Legalization of Same-Sex Marriage Raw Power – Threats, Retaliations, etc. Misuse of Public Power dozens of judicial decisions illegitimate tactics in legislatures ultra vires orders and rules by agencies misuse of tax funds and denial of licenses, etc. refusal to defend the law, denial of service, duty Misuse of Private Power Denial of NOM apps Firings, demotions, denials of hiring/demotion Harassing lawsuits Ends-Justify-the –Means Leads to Political retaliation and personal resentment

44. Same-Sex Marriage Erodes Civil Rights and Religious Liberty Same-sex marriage legalization leads to legal claims against religious organizations: • Roger Severino: Religious institutions risk civil liability & litigation under employment antidiscrimination laws, fair housing, & public accommodation laws, risk loss of government privileges & benefits: • including tax-exempt status, exclusion for eligibility for social service contracts, exclusion from government facilities & grounds, & exclusion from solemnizing marriages, & potential civil & criminal liability for violating “hate crimes” & “hate speech” laws. Chai Feldblum agrees: Sexual liberty will take priority over religious liberty Robin F. Wilson, et al concur conflict inevitable and reduction of religious liberty likely.

45. Erosion of Civil Rights in Reality King & Spaulding intimidated into dropping defense of DOMA Massachusetts: “at least 12 disenting Massachusetts justices of the peace [were] forced to resign for refusing to perform same-sex marriages…” --Illinois B&B owners decline SSCU celebration (Sept. 2011) -- NY City Clerk face prosecution (seeks accommodation (Sept. 2011) California: Some county clerks tried to accommodate deputy clerks who wouldn’t issue SSM licenses to. San Diego County: 24/112 marriage employees objected. LA Times survey of all 58 California counties: 23 counties allowed employees to opt out of officiating; 35 counties not allow opting out

46. Legal actions have been taken against religious bodies for declining to rent facilities for same-sex ceremonies and for firing a minister who performed a same-sex union ceremony in violation of church doctrine • Litigation has resulted from church-affiliated charitable organizations refusing to recognize same-sex couples as married for purpose of eligibility for student housing and refusing to recognize same-sex couples for purposes of “family” membership status • The California Supreme Court ruled against a clinic and Catholic doctors who declined on grounds of religious conviction s to give assisted reproduction services to a lesbian even though they referred her to another physician. The court rejected their defense of free exercise of religion and freedom of expression • In New Mexico a Christian couple in the marriage photography business were found guilty and charged $6,600 because they declined on grounds of religious principle to photograph a civil commitment ceremony of a lesbian couple

47. California “Kristallnacht” The New Look of “Tolerance” in California

48. Posted 2 days after Prop 8 passedSource: http://yesproposition8.blogspot.com/2008/11/beauty-of-no-crowds-tolerance.html

49. Latter-day Saints and California Proposition 8 at http://en.fairmormon.org/Latter-day_Saints_and_California_Proposition_8

50. http://www.meridianmagazine.com/ideas/081110hate.html