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Standing for Something

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Standing for Something

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  1. Constitutional Protection For MarriageBy Lynn D. Wardle*The professional opinions expressed are those of the author who speaks for himself not any institution with which he is affiliated.Presented to the Inland Empire (CA) chapter of the J. Reuben Clark Law Societyfrom the offices of Best, Best & Krieger (courtesy of Franklin C. Adams)3750 University Avenue, Riverside, CA 92502-1028Friday, September 5, 2008.

  2. Standing for Something • - President Gordon B. Hinckley, Standing for Something: • “We go to great lengths to preserve historical buildings and sites in our cities. We need to apply the same fervor to preserving the most ancient and sacred of institutions – the family. • What we desperately need today on all fronts . . . are leaders, men and women who are willing to stand for something. We need people . . . who are willing to stand up for decency, truth, integrity, morality, and law and order . . . even when it is unpopular to do so – perhaps especially when it is unpopular to do so.

  3. Proposition 8 Proposition 8 adds fourteen words to the Constitution of California: “Only marriage between a man and a woman is recognized in California.” The language is identical to the language of statue enacted by over 60% of the popular vote as Proposition 22 in 2000 (& codified at Family Code § 308.5).

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

  5. Ten Court Rulings 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) and Castle v. State, 2004 WL 1985215, *11 (Wash.Super. Sep 07, 2004), rev’d Andersen v. King County 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 Hernandez v. Robles 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’dIn re Marriage Cases, 183 P.3d 384 (Calif. 2008).

  6. 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).

  7. 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

  8. States That Have Adopted Constitutional Amendments Protecting Conjugal Marriage and States with Pending Votes on Marriage Amendments Alaska Alabama Arkansas Colorado Georgia Hawaii Idaho Kentucky Kansas Louisiana Michigan Mississippi Missouri Minnesota Nebraska Nevada North Dakota Ohio Oklahoma Oregon South Carolina South Dakota Tennessee Texas Utah Virginia Wisconsin Arizona California Florida 27 States with marriage amendments: 3 States with pending votes (Nov. 2008):

  9. 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) 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 Protects Government Structure (Legislature Can Ban SSM): HI “The Legislature shall have the power to reserve marriage to opposite-sex couples.” Haw. Const., Art. I, sec. 23 (1998)

  10. VOTER SUPPORT FOR STATE MARRIAGE AMENDMENTS The average vote in favor of state marriages amendments in all of the states combined is 69%. The popular support in the state votes has ranged from a low of 57% in favor (OR) to 84% in favor (MS).

  11. Protection of Marriage & Familyis the Global Norm 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.”

  12. 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) 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 of 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 Hague Convention on the Civil Aspects of International Child Abduction Convention on the Rights of the Child European Convention for the Protection of Human Rights and Fundamental Freedoms American Convention on Human Rights American Declaration of the Rights and Duties of Man Conference on Security and Co-operation in Europe, Final Act (Helsinki Accord) African Charter on Human and People’s Rights (Banjul Charter) African Charter on the Rights and Welfare of the Child Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa Geneva Declaration of the Rights of the Child of 1914 United Nations General Assembly Universal Declaration of Human Rights Declaration of the Rights of the Child Proclamation of Teheran Declaration on Social Progress and Development Declaration on Social Progress and Development Declaration on the Rights of Mentally Retarded Persons Declaration on the Protection of Women and Children in Emergency and Armed Conflict Declaration on the Rights of Disabled Persons Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families Cairo Declaration on Human Rights in Islam Declaration on the Elimination of Violence against Women Draft Declaration on the Rights of Indigenous Peoples Beijing Declaration and Platform for Action, Fourth World Conference on Women See also Proposed American Declaration on the Rights of Indigenous Peoples

  13. Most national constitutions adopted in the past 60 years also have included express constitutional protection for marriage and/or family.

  14. 145 Nations (/191) with ConstitutionalProvisions onFamily and Marriage(Including 83 Nations with Substantive Protections of Marriage) Afghanistan Albania * Algeria Andorra * Angola * Antigua & Barbuda Argentina Armenia * Australia * Austria * Bahrain * Barbados Belarus * Belize Belgium * Bhutan Bolivia * Bosnia-Herzegovina * Brazil * Bulgaria * Burkina-Faso * Cambodia * Cameroon Canada * Cape Verde Central African Republic Chad Chile China * Columbia * Congo * Costa Rica * Croatia * Cuba * Cyprus * Czech Republic Dominica Dominican Republic East Timor * Ecuador * Egypt El Salvador * Equatorial Guinea * Eritrea * Estonia Ethiopia * Fiji Finland Gabon * Gambia Georgia * Germany * Ghana Greece * Guatemala Haiti * Honduras * Hungary * Iceland Indonesia Iran Iraq Ireland * Italy Jamaica Japan * Kazakhstan * Kosovo Kyrgyzstan Kuwait Latvia * Lesotho Liberia Libya * Lichtenstein Lithuania * Luxembourg * Macedonia * Madagascar Malawi * Mali Malta Mauritania Mexico Moldova Mongolia * Montenegro * Mozambique * Namibia * Nauru Nicaragua * Niger * Nigeria * North Korea * Oman Pakistan * Panama * Papua New Guinea Paraguay * Peru * Philippines * Poland * Portugal * Qatar Romania * Russian Federation Rwanda * Saint Lucia Saint Vincent Saudi Arabia Senegal * Serbia * Sierra Leone Slovakia * Slovenia * Somalia * South Africa South Korea * Spain Sri Lanka Sudan * Suriname * Swaziland * Sweden * Switzerland * Syria * Tajikistan * Thailand Togo * Trinidad and Tobago Tunisia Turkey Turkmenistan * Tuvalu Uganda * Ukraine * United Arab Emirates Uruguay * Uzbekistan * Venezuela * Vietnam * Yemen Zambia See also: Chechnya Hong Kong Puerto Rico Tibet *= protects both marriage & family No * = protects family only

  15. Thirty-Seven of 191 Sovereign Nations Have Constitutional Provisions/Amendments Protecting Conjugal Marriage Armenia (art. 32) Azerbaijan (art. 34) Belarus (art. 32) Brazil (art. 226) Bulgaria (art. 46) Burkina Faso (art. 23) Cambodia (art. 45) Cameroon (art. 16) China (art. 49) Columbia(art. 42) Cuba (art. 43) Ecuador (art. 33) Eritrea (art. 22) Ethiopia (art. 34) Gambia (art. 27) Honduras (art. 112) Japan (art. 24) Latvia (art. 110)* Lithuania (art. 31) Malawi (art. 22) Moldova (art. 48) Montenegro (art. 71) Namibia (art. 14) Nicaragua (art. 72) Paraguay (arts. 49,51,52) Peru (art. 5) Poland (art. 18) Serbia (art. 62) Somalia (art. 2.7) Suriname (art. 35) Swaziland (art. 27) Tajikistan (art. 33) Turkmenistan (art. 25) Uganda (art. 31) Ukraine (art. 51) Venezuela (art. 77) Vietnam (art. 64) See also Mongolia, Romania, Hong Kong

  16. 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,…”

  17. Samples of Voter Support for SMAs • StateYear% 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%

  18. Minorities strongly support constitutional protection of conjugal marriage 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.” As a group of African-American pastors in Georgia declared: “As our respected fallen leader, Dr. King once said, ‘I have a dream, that my four children will one day live in a country where they will not be judged by the color of their skin but by the content of their character.’ This is a character issue where we cannot tolerate compromise.” Racial Equality does not require SSM General Colin Powell described the difference between black civil rights claims for equality and gay rights claims for equality. “Skin color is a benign, non-behavioral characteristic; sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument.”

  19. Gender Equality does not require SSM Justice Ruth Bader Ginsburg wrote in a famous decision: “Physical differences between men and women. . . 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)

  20. Why the US has no Constitutional Protection for Marriage 1) History - 1787 2) Federalism 3) Deliberately Difficult Amendment Process (only 16 amendments in past 217 years since the original Bill of Rights)

  21. Three reasons why some (23) states have not adopted constitutional amendments protecting marriage 1) History (it was not previously an issue, not an issue when the state constitution was drafted) 2) Inertia (too much work and too much political cost to make the effort) 3) Intimidation (abuse of, attempt to silence those who oppose SSM)

  22. Déjà vu from 1787-91 and opposition to the Bill of Rights 1) Not needed, ample protection (facts show need for constitutional protection) 2) Endanger individual liberties (protect individual liberties) 3) Distort constitutional government (purpose of constitutional government) 4) Diverts attention from more important business (Pork barrel politics? Gerrymandering?) 5) Futile (not unless we have lost the rule of law; government of laws not men)

  23. Six Big Changes Since 2000 That Make Passage of Proposition 8 More Difficult First, the prevailing sentiment is for “change” and it is led by a very charismatic and eloquent candidate for the U.S. Presidency who has openly expressed his opposition to Prop. 8. Second, there is hostility and punitive reaction against not just the arguments that favor Prop. 8, but for the mere expression of views that support Prop. 8! Third, the gay movement has increased in credibility, and influence. Fourth, the California Supreme Court in May of this year decided In re Marriage Cases. Fifth, supporters of same-sex marriage have engaged in widespread misuse and abuse of government authority to oppose Prop. 8. Sixth, it should come as no surprise that a poll of expected voters taken by the Public Policy Institute of California (Aug. 12-19, 2008) found: Proposition 8, which would amend the state constitution to eliminate same-sex marriage, is favored by 40 percent and opposed by 54 percent of the state’s likely voters. (But the polls are volatile.)

  24. 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 4) Political – manipulation endangering integrity and independence of judiciary 5) Pandering – embraced rather than rejected the capture of marriage like the racial ant miscegenation movement

  25. What’s the Harm of Legalizing Same-Sex Marriage? 1) Switch Burden of Proof (is on those proposing radical alteration of global norm) 2) Assumes immediate, visible harm (comparable to divorce children or smoking) 3) Diverts attention from transformative effect on marriage of inclusion of gay-lesbian lifestyles.   Compare to other radical redifinition of marriage: -polygamy with 13-year-olds ala Tom Greene? -Fa-Dau marriage?

  26. Response Distinguish Public from Private Interests in marriage. When marriages fail or fail to form, society must pick up the pieces and the public incurs huge fiscal and social costs. How marriage is defined sends signals to and reflects common understandings about the expectations of the relationship. Marriage is more than a mere “word” or “piece of paper.” Abe Lincoln story. Men and women are different, and the union of a man and woman still creates a different kind of union that the union of 2 men or 2 women. RB Ginsburg “-“ Marriage establishes the moral core of the family and the moral baseline and standards for society in many ways. “Marriage is a society's cultural infrastructure . . . .” David Blankenhorn, The Future of Marriage. One clear effort to change marriage and marital family: Bolshevik Russia marriage and family law reforms, 1917-1927.

  27. Same-sex relationships differ in profound ways form conjugal marriage For example, a study by Dutch AIDs researchers, published in 2003 in the journal AIDS, reported on the number of partners among Amsterdam’s homosexual population. They found: - 86% of new HIV/AIDS infections in gay men were in men who had steady partners. - Gay men with steady partners engage in more risky sexual behaviors than gays without steady partners. - Gay men with steady partners had 8 other sex partners (“casual partners”) per year, on average. - The average duration of committed relationships among gay steady partners was 1.5 years. American researchers Bell and Weinberg reported that 43 percent of white male homosexuals had sex with 500 or more partners, with 28 percent having one thousand or more sex partners. A recent study of 2,583 older sexually active gay men reported that “the modal range for number of sexual partners ever . . . was 101-500,” while 10.2 percent to 15.7 percent had between 501 and 1,000 partners, and another 10.2 percent to 15.7 percent reported having had more than one thousand sexual partners in their lifetime. Kirk and Madsen reported in their that “the cheating ratio of ‘married’ gay males, given enough time, approaches 100%. . . .”

  28. We must speak up and stand up • One of our responsibilities as parents, citizens, and especially scholars is to warn of dangers • - Elie Wiesel, Night: “Moishe the Beadle” • Elie Wiesel, Nobel Acceptance Speech: “I swore never to be silent . . . . We must take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor . . . .” We too must speak up and get involved.” • “There is so much to be done, there is so much that can be done. One person – a Raoul Wallenberg, an Albert Schweitzer, a Martin Luther King, Jr. – one person of integrity can make a difference, a different of life and death.”

  29. Standing for Something • -President Gordon B, Hinckley wrote: • “We cannot effect a turnaround in a day or a month or a year. But with enough effort, we can begin a turnaround within a generation, and accomplish wonders within two generations – a period of time that is not very long in the history of humanity.

  30. Selected Partial Bibliography(A few of many excellent resources that may be helpful in defending the fundamental institutions of conjugal marriage and the marital family) • The Divine Institution of Marriage (Salt Lake City, Aug. 13, 2008), • at www.newsroom.lds.org/ldsnewsroom/eng/commentary/the-divine-institution-of-marriage • What’s the Harm (Lynn D. Wardle, ed., University Press of America 2008) • The Future of Marriage by David Blankenhorn (Encounter Books 2007) • Setting the Record Straight: Mormons & Homosexuality by A. Dean Byrd, Ph.D., M.P.H. (Millenial Press Inc. 2008) • The Natural Family, A Manifesto by Allan C. Carlson & Paul T. Mero (Spence Publishing 2007) • The Meaning of Marriage (Robert P. George & Jean BethkeElshtain eds., Spence Publishing 2006) • Power Over the Body, Equality in the Family by Charles J. Reid Jr., (Wm. B. Eerdmans Publishing 2004) • Marriage and Same-Sex Unions, A Debate (Lynn D. Wardle, Mark Strasser, William C. Duncan & David Orgon Coolidge, eds. Praeger • 2003) • Homosexuality and the Church of Jesus Christ of Latter-day Saints by A. Dean Byrd, Ph.D. (Cedar Fort 2001) • The Case for Marriage by Linda J. Waite and Maggie Gallagher (Doubleday 2000)

  31. Available at the BYU Bookstore at http://www.byubookstore.com/ePOS/form=item.html&item=0761843160&store=439.Also available from the publisher at http://www.univpress.com/Catalog/SingleBook.shtml?command=Search&db=^DB/CATALOG.db&eqSKUdata=0761843167

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