Update on Prop 8 Litigation & the Movement to Legalize Same-Sex Marriage

1. Update on Prop 8 Litigation & the Movement to Legalize Same-Sex Marriage Professor Lynn D. WardleBruce C. Hafen Professor of Law J. Reuben Clark Law SchoolBrigham Young University

3. Outline: Same-Sex Marriage Update and the Rule of Law  (1) The current status of the movement to legalize same-sex marriage in the US and globally.  (2) The movement to legalize same-sex marriage, like Roe v. Wade’s "abortion doctrine," corrupts and distorts every doctrine of law it touches. (3) Its not just what law changes are being made, but how the law is being changed – the profound procedure/structural wrong as well as the substantive wrongs. (4) The power of one.

4. (1) The Legal Status of Same-Sex Unions in the USA and Globally 20 March 2012 A. Legal Allowance of Same-Sex Unions in the USA (50 states + DC): * Same-Sex Marriage Recognized: Six (8) USA States (+ DC) ( + only 2 of 564 Indian Tribes) Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, Washington, Marylnad (and the District of Columbia). Same-Sex Unions Equivalent to Marriage Recognized in Nine (8) US States: California, Nevada, New Jersey, Oregon, Illinois, Hawaii, Delaware & RI 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).

5. Legal Rejection of Same-Sex Unions in the USA:  Same-Sex Marriage Prohibited by State Constitutional Amendment in Thirty (30) States: Alaska, Alabama, Arkansas, Arizona, California, Colorado, Florida, Georgia, Hawaii, Idaho, Kentucky, Kansas, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, 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) Will be on ballot in 2012 in MN & NC; serious chance for measures to allow voters to vote on SMAs in 2012 inWY, IN, IA; bill to repeal SSM in NH moving forward) Same-Sex Civil Unions Equivalent to Marriage Recognition Prohibited by State Constitutional Amendment in Nineteen (19) USA States (38%): Alabama, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and Wisconsin. Same-Sex Marriage Denied by Statute or Appellate Decision in Forty-one States All but 6 states with SSM + New Mexico, Rhode Island, In all 31 states in which same-sex marriage has been on the ballot the people (including the Maine 2009 “people’s veto” of the legislature’s approval of same-sex marriage) have decisively rejected same-sex marriage. The total vote rejecting same-sex marriage in the 30 state marriage amendments ballots combined is over 63%.

6. Three 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) Nineteen 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%)

7. The Legal Status of Same-Sex Unions Around the Globe Legal Status – 1 February 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 (some may for a time allow both same-sex marriages and civil unions) Same-Sex Marriage is allowed in some sub-jurisdictions (e.g., Mexico, USA (6/50 states), and there is ongoing political movement or plans to allow SSM in several nations (Brazil, etc.). Same-Sex Unions Equivalent to Marriage Allowed in Fifteen (15) Other Nations: Denmark, Finland, France, Germany, Luxembourg, South Africa, Slovenia, Andorra, Switzerland, UK, New Zealand, Austria, Ireland, Brazil (ruling only), Liechtenstein. Same-Sex Partnerships (Not Equal to Marriage) Allowed in Nine (9) or More Nations:* Austria, Australia, Columbia, Croatia, Czech Republic, Hungary, Israel, Switzerland, Uruguay. * = per Wikipedia and other journalistic quality sources.

8. B. Legal Rejection of Same-Sex Marriage Globally (193 Sovereign Nations /UN, August 2011): At least eighty-five (85) Nations Have Substantive Constitutional Provisions Protecting “Marriage” One Hundred Forty-five (145) Nations have Constitutional Provisions Protecting “Family” One Hundred Eighty-four (184) Nations Do Not Allow Same-sex Marriage One Hundred Sixty-nine (169) Nations Do Not Allow Any Same-sex Marriage-Like Unions

9. Global rejection of SSM (cont’d) 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 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. . . .” 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 . . . .” Uganda Constitution, Art. 31: “Marriage between persons of the same sex is prohibited.”

10. Global (US) Progress of Same-Sex Marriage, and Marriage Equivalent Civil Unions or Partnerships, 1985-2011.

11. National Organization for Marriage – Victory in NY (Trend?) THURSDAY, MARCH 22, 2012 Victory! Last June I made you a promise—that I would not rest until the voters of New York had the final say on marriage. Step one was replacing the seven turncoat New York Senators who brought same-sex marriage to the state. Tuesday evening, in Brooklyn, we took the first major step toward keeping that promise with an incredible victory in a special election for State Senator! Political newcomer and marriage supporter David Storobin has pulled off a major upset (subject to a recount) against long-time councilman Lew Fidler in New York’s Senate District 27. . . . .

12. Michelle Obama Touts Sotomayor, Kagan as Votes for the Right to ‘Love Whomever You Choose’ Source: http://cnsnews.com/news/article/michelle-obama-touts-sotomayor-kagan-votes-right-love-whomever-you-choose

13. By Fred Lucas March 20, 2012 In this photo provided by CBS, first lady Michelle Obama joins host David Letterman on the set of the “Late Show with David Letterman,” Monday, March 19, 2012 in New York. It was her first visit to the show. (AP Photo/CBS, John Paul Filo) (CNSNews.com) –First Lady Michelle Obama told Democratic Party donors at two New York City fundraisers Monday that the two Supreme Court justices her husband appointed would be important in cases involving “privacy,” and the right to “love whomever you choose.” The "right to privacy," as espoused by the Suprmee Court in the 1973 Roe v. Wade decision, was used to establish abortion on demand in the United States.Meanwhile, White House Press Secretary Jay Carney confirmed Tuesday that the first lady’s reference to “love whomever you choose,” was aimed at the administration’s decision not to defend the Clinton-era Defense of Marriage Act.The DOMA law recognized marriage as between a man and woman [only, for purposes of federal law, and let’s states choose for themselves whether to recognize SSM from other states]. . . . Source: http://cnsnews.com/news/article/michelle-obama-touts-sotomayor-kagan-votes-right-love-whomever-you-choose

14. 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

15. Growing Intolerance Against Christians in Europe The Observatory's Report on Intolerance and Discrimination against Christians in the Year 2011 was released on March 19th, 2012. This report portrays the most important developments with regard to freedom of religion, the most striking cases of intolerance and discrimination throughout Europe – and what individuals and institutions say about it. Dr. Gudrun Kugler, director of the Observatory, explains: „Studies suggest that 85% of all hate crimes with an anti-religion background in Europe are directed against Christians. . . . We also notice professional restrictions for Christians: a restrictive application of freedom of conscience leads to professions such as magistrates, doctors, nurses and midwives as well as pharmacists slowly closing for Christians. Teachers and parents get into trouble when they disagree with state-defined sexual ethics.  Source: http://www.intoleranceagainstchristians.eu/publications/report-2011.html

16. The Burden sisters • The UK Government comes between the sisters • Inheritance tax payable on house and assets on death of the first • Result – homelessness, cf married and civil partners

17. Burden v. UK • They lost their 2008 appeal to the Grand Chamber of the European Court of Human Rights 15:2 on the ground that the state has some discretion in the application of tax • Art. 14 ECHR bans discrimination on the ground of status; Art. 1 Protocol 1 protects property rights

18. Sibling devotion • Sisters, sisters, never such devoted sisters • Lord help the mister who comes between me and my sister • And Lord help the sister who comes between me and my man

19. 26 Court Rulings in USA Mandating Same-Sex Marriage (2011Sep) 12 State Court rulings in 10 States mandating same-sex marriage: Hawaii:; Baehr v. Miicke, 196 WL 694235 (Haw. Cir. Ct. 1996), or 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: Andersen v. King County, 2004 WL 1738447 *3,4,11 (Wash. Super. 2004) ; & Castle v. State, 2004 WL 1985215 (Wash.Super. Sep 07, 2004), rev’d Andersen v. King County 138 P.3d963 (Wn. 2006). New York: Hernandez v. Robles, 794 N.Y.S.2d 579 (N.Y.Sup., Feb. 4, 2005) rev’d Hernandez v. Robles 855 N.E.2d 1 (N.Y. 2006), overturned by SSM legislation 2011. Maryland: Deane v. Conway, Case No. 24-C-04-005390 (Cir. Crt. Balt. City, Md. Jan. 20, 2006), available online, rev’d Conaway v. Deane 932 A.2d 571 (Md. 2007). 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’dIn re Marriage Cases, 183 P.3d 384 (Calif. 2008), overturned by Prop 8, November 4, 2008. & In re Marriage Cases, 183 P.3d 384 (Calif. 2008), aff’g In re Coordination Proceedings, 2005 WL 583129 supra overturned by Prop 8, November 4, 2008. Iowa: Varnem v. Brien, 763 N.W.2d 862 (Iowa 2009).

20. Court Rulings Mandating Same-Sex Marriage, cont’d 3 Federal Court Courtrulings mandating same-sex marriage: Citizens for Equal Prot., Inc. v. Bruning, 368 F. Supp. 2d 980 (D. Neb. 2005)rev'd sub nom. Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006.) Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D. Mass 2010) Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010.)

21. Court Rulings Mandating Same-Sex Marriage, cont’d 5 Federal Court Courtrulings mandating same-sex marriage recognition: Finstuen v. Edmonson, 497 F.Supp.2d 1295 (W.D. Okla. 2006), aff’d 496 F.3d 1129 (10th Cir. 2007) (Oklahoma statute denying recognition of foreign same-sex adoptions is unconstitutional) Finstuen v. Crutcher, 496 F.3d 1129 (10th Cir. 2007), aff’g497 F.Supp.2d 1295 (W.D. Okla. 2006) (affirming trial court ruling that Oklahoma statute denying recognition of foreign same-sex adoptions is unconstitutional) (below) In re Levenson, 587 F.3d 925 (9th Cir. 2009) (denial of federal health benefits to same-sex spouse of court employee violates Due Process) Massachusetts v. U.S. Dept. of Health & Human Services, 698 F. Supp. 2d 234 (D. Mass. 2010.) (The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.) Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D. Mass 2010) (DOMA provision denying recognition of same-sex marriages in federal law and programs violates core principles of Equal Protection.) In re Balas, 449 BkcyRptr 567,__ F. Supp. __ (C.D. Cal. 2011) (20 bankruptcy judges rule that DOMA fails “heightened scrutiny” and is unconstitutional, citing AG Holder Letter).

22. Court Rulings Mandating Same-Sex Marriage, cont’d 6 State Court rulings mandating same-sex marriage recognition: (* More . . . .) Godfrey v. Spano, 15 Misc.3d 809, 836 N.Y.S.2d 813 (Sup.Ct. Westchester Cty.2007), (trial court applied the principles of comity and upheld an Executive Order issued by the Westchester County Executive that required departments and agencies in that County to recognize for benefit purposes same sex marriages lawfully entered into outside the State of New York in the same manner as they recognize opposite sex marriages). Martinez v. County of Monroe, 850 N.Y.S.2d 740, 743 (N.Y. App. Div. 2008.) (“Thus, we conclude that plaintiff's marriage to Golden, valid in the Province of Ontario, Canada, is entitled to recognition in New York in the absence of express legislation to the contrary.”) Beth R. v. Donna M., 19 Misc.3d 724, 853 N.Y.S.2d 501 (Sup.Ct. N.Y. Cty.2008) (the common law doctrine of comity required recognition of a same sex Canadian marriage for divorce purposes). Golden v. Paterson, 877 N.Y.S.2d 822, 837 (N.Y. Sup. Ct. 2008) (N.Y. Governor Paterson's Executive Directive dated May 14, 2008, requiring state agencies to recognize same sex marriages legally solemnized in other jurisdictions is consistent with New York's common law, statutory law, and constitutional separation of powers regarding recognition of marriages legally solemnized outside New York.). Lewis v. New York State Dept. of Civil Serv., 872 N.Y.S.2d 578, 583 (N.Y. App. Div. 2009) leave to appeal granted, 12 N.Y.3d 705, 906 N.E.2d 1086 (2009) and aff'd sub nom. Godfrey v. Spano, 13 N.Y.3d 358, 920 N.E.2d 328 (2009.) (Same sex marriages solemnized in other jurisdictions will still be recognized as a marriage in New York, even though same-sex marriage does not fit in New York’s definition of marriage.) Christiansen v. Christiansen, 253 P.3d 153, 154 (Wyo. 2011.) (The court ruled that a district court in Wyoming has subject matter jurisdiction to dissolve the ssm entered into in Canada. This was true even though Wyoming statute prevents same-sex marriages from being entered into.)

23. Court Rulings Mandating Same-Sex Civil Unions (“Marriage Lite”) in the USA 4 State Court Rulings Mandating SSCUs: Baker v. State, 744 A.2d 864 (Vt. 1999.) (The Supreme Court held that exclusion of same-sex couples from benefits and protections incident to marriage under state law violated common benefits clause of State Constitution.) Li v. State, 2004 WL 1258167 (Or. Cir. April 20, 2004), rev’d, Liv v. State, 110 P.3d 91 (Ore. 2005.) (Followed Vermont in Baker v. State and ruled that denying the same rights to those in same-sex relationships as are given to traditional marriages is unconstitutional. The case also ruled that same-sex marriages already performed in Multnomah County within 30 days of this decision should be recognized.) Lewis v. Harris, 908 A.2d 196 (N.J. 2006.) (Same-sex marriage is not a fundamental right entitled to protection under the liberty guarantee of the New Jersey Constitution; however, committed same-sex couples must be afforded the same rights and benefits enjoyed by married opposite-sex couples.) Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008.) (Laws restricting civil marriage to heterosexual couples violated same-sex couples' state constitutional equal protection rights.)

24. The Constitutional Claims for Same-Sex Marriage are weak and inadequate (concept, doctrine & politics). 1. There is No Fundamental Right to S-S Marriage Test Funda Rt 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)

25. 2. 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 (White Supremacy; Eugenics) -SSM movement latest political movements seeking to “capture” marriage in order to promote a social reform agenda

26. 3. Equality - Gender Equality 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 – marriage 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 genders are fungible and women / female contributions are not essential to the institution of marriage, might they 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 M+W creates a different union than 2 Mn or 2 Wo

27. -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.

28. Eleven Constitutional Doctrines Invoked to Mandate Judicial Legalization of Same-Sex Marriage -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

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

30. James Madison “[W]hat is government itself but the greatest of all reflections on human nature? If men were angels no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” -The Federalist Papers, No. 51 (1787) (J. Madison) Madison told the Virginia ratifying convention : “To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.” -The Writings of James Madison 223 (Gaillard Hunt ed., 1904)

31. John Adams “[It is Religion and Morality alone, which can establish the Principles upon which Freedom can securely stand. . . The only foundation of a free Constitution, is pure Virtue . . . . “-Letter to Zabdiel Adams, June 21, 1776 “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” -Letter from John Adams to the Officers of the First Brigade of the Third Division of the Militia of Massachusetts (1798) in 9 Life and Works of John Adams 229 (1954) (emphasis added)

32. George Washington “Free suffrage of the people can be assured only ‘so long as there shall remain any virtue in the body of the people.’” -The Papers of George Washington, Letter of Feb. 7, 1788. “[T]he foundations of our National policy will be laid in the pure and immutable principles of private morality” -Inaugural Address of 1789

33. Patrick Henry “Bad men cannot make good citizens. It is when a people forget God that tyrants forge their chains. A vitiated state of morals, a corrupted public conscience, is incompatible with freedom. No free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue; and by a frequent recurrence to fundamental principles.” Source: http://quotes.liberty-tree.ca/quotes_by/patrick+henry.

34. Virtue, Marriage & Constitution Marriage (marital families) and Religions were principal nurturers of Virture. John Adams: “The foundation of national morality must be laid in private families . . . . How is it possible that Children can have any just Sense of the sacred Obligations of Morality or Religion if, from their earliest Infancy, they learn their Mothers live in Habitual Infidelity to their fathers, and their fathers in as constant Infidelity to their Mothers?” -4 Diary and Autobiography of John Adams 123 (L.H. Butterfield, et al. ed. 1961) “George Mason argued that republican government was based on an affection ‘for altars and firesides.’ “ “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.” One founding era writer noted that “by marriage ‘man feels a growing attachment to human nature, and love of his country.’” -Nancy F. Cott, Public Vows, A History of Marriage and the Nation 18-20 (2000)

35. Historian Linda Kerber: “The Republican Mother’s life was dedicated to the service of civic virtue: she educated her sons for it, she condemned and corrected her husband’s lapses from it. If, according to. . . [one] commonly accepted claim, the stability of the nation rested on the persistence of virtue among its citizens, then the creation of virtuous citizens was dependent on the presence of wives and mothers who were well informed, ‘properly methodical,’ and free of ‘invidious and rancorous passions.’ . . . To that end the theorists created a mother who had a political purpose and argued that her domestic behavior had a direct political function in the Republic.” Historian Michael Grossberg: “By charging homes with the vital responsibility of molding the private virtue necessary for republicanism to flourish, the new nation greatly enhanced the importance of women’s family duties. . . . At times ‘it even seemed as though republican theorists believed that the fate of the republic rested squarely, perhaps solely, on the shoulders of its womenfolk.’” Historian Jan Lewis: “Revolutionary-era writers held up the loving partnership of man and wife in opposition to patriarchal dominion as the Republican model for social and political relationships.”

36. Francis Grund An Austrian social commentator and 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)

37. 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 infrastructure of society. -Marital families create most social-capital. -We derive our “root paradigms” from our families.

38. “As the family goes, so goes the nation, and so goes the world in which we live.” -- Pope John Paul II “[M]arriageand the family are rooted in the most intimate core of truth about man and his destiny.” Pope Benedict XVI (CAN, May 11, 2006) “When the home is destroyed, the nation goes to pieces.” – President Spencer W. Kimball. “A nation will rise no higher than the strength of its homes. If you want to reform a nation, you begin with families . . . .” President Gordon B. Hinckley. “ ‘I believe in the home as the foundation of society, as the cornerstone of the nation…. I cannot conceive of a great people without great, good homes. . . . ’” President (Elder)Thomas S. Monson, Ensign 1997 November (quoting Stephen L. Richards).

39. Deep Structural: Alter Fundament Social Institution without Constituents Approval Reason Why Founders insistsed on ratification by conventions elected by/ representing The People Reason Why Approval of 2/3 Congress (or state constitutional conventions) and People in the States (3/4) required for amending the Constitution

40. 5. Structural / Procedural Violations Separation of Powers Federalism Procedural Due Process The Rule of Law Abuse of Power of Government Officers & Agencies Bullying, Intimidation and Coercion

41. 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

42. Same-Sex Marriage Erodes Civil Rights and Religious Liberty Scholars predicted 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.

43. 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

44. 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

45. In Iowa, after the state Supreme Court legalized same-sex marriage by judicial decree an official in the Iowa Dep’t of Public Health “sent notices to Iowa’s 99 county recorders telling them they must comply with a recent Iowa Supreme Court ruling that legalizes same-sex marriage [ordering]: ‘All county recorders in the state of Iowa are required to comply with the Varnum decision and to issue marriage licenses to same sex couples in the same manner as licenses issued to opposite gender applicants….”

46. After California voters passed Proposition 8, supporters of Prop I were vilified and harassed. Mormons, in particular, were singled out and widely blamed. Names and addresses of Mormons and others who donated to support Pro 8 were published on the internet. The result was violent threats against, attacks upon, and intrusions upon selected Mormons, their places of worship, their communities, their businesses, and their employment. • Protesters rallied outside the Mormon Temple in University City, California • LDS Meeting houses were vandalized • Envelopes of white powder were delivered to two LDS temples • Vandals spray-painted the words “No on Prop I” at a Mormon church in Orangevale, CA • Police called out to protect Mormon temple in Los Angeles against trespassing gay protesters who wrote anti-Mormon messages on the temple walls • Ten church buildings in the Sacramento region were vandalized

47. LDS businessman’s online magazine for LDS community hacked into & replaced with lesbian images. • Boycott of: • restaurant whose LDS manager had donated $100 to Prop. 8 • Car dealer for support of Prop. 8 • (considered) Cinemark, whose CEO contributed to Prop. 8 • California Musical Theatre artistic director & LDS (Scott Eckern) resigned under pressure to protect theatre from criticism because he donated $1000. • Richard Raddon, LA Film Theatre Director, resigns from prestigious job after threats of boycott over his donation to Prop. 8. (Similar incident in Oakland not reappoint because donated • Fred Karger, pro-same-sex marriage activist, filed to revoke LDS Church 501(c)(3) status. • US Olympic Committee Chair (gymnastics Gold Medalist) Peter Vidmar resigned because of pressure because he contributed to “Yes of Prop 8” • 24 August 2011 headline “Florida teacher suspended for views on gay marriage.” “He was Teacher of the Year last year, but just days before the new school year begins at Mount Dora High School in … Florida, Jerry Buell has been removed from teaching duties. His offense? He said he opposed gay marriage on his private Facebook page.” (Michael DeGroote, Des News, at A3).

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

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

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