What’s the Harm? Changes and Challenges in Family LawLesson #4: The Future for Families: Working Effectively to Make the World Better for Families by Lynn D. Wardle Bruce C. Hafen Professor of Law J. Reuben Clark Law School, Brigham Young University Presented at BYU Education Week, August 21, 2009
Thanks for coming (back) (How many 3d, 2d, 1st)
Thanks to BYU Education Week for allowing this class
Thanks to the room hosts!
(Recommend Elder Packer’s keynote Devotional Address yesterday, 8/18, defend your families)
Leave 5-10 mins Qs
1) Marriage & Family Law Research Project website
http://www.law2.byu.edu/organizations/marriage_family/index.php (symposia, presentations, draft papers, slides, links)
2) “What’s the Harm? Does legalizing same-sex marriage really harm individuals, families or society?” (Univ. Press Am. 2008) BYU Bookstore - Y
ME Poll (where 100,000+ signatures collected, only 55,087 needed for “people’s veto” ballot): Poll in April: 49.5% opposed SSM; 47.3% supported SSM.
Source: Peter Cassels, Religious Groups play major role …. (8/18/09_)
NH Poll: “New Hampshire\'s legislature may have passed a "gay marriage" bill that the governor signed into law, but that hasn\'t translated into statewide support, a new poll says.
“The poll shows that by a margin of 49-41 percent, New Hampshire likely voters disapprove of the law that made the state the sixth nationwide to legalize "marriage" for homosexual couples. Ten percent are undecided. The
Source: Michael Foust / Baptist Press (7/21/09)
IA: “The poll found 61 percent of Iowans would vote for a constitutional limit to prohibit same-sex marriage. It found 80 percent of Republicans and 58 percent of independents support an amendment. Democrats were split — 47 percent for an amendment and 47 percent against it.”
Source: James Q. Lynch, Poll finds resistance to gay marriage (8/18/09)
“In Iowa, a survey of 500 registered voters showed that 67 percent favor of placing a constitutional amendment on the ballot that would prohibit "gay marriage.“ Source: Michael Foust / Baptist Press (7/21/09)
CA: Equality California (and other gay groups) will not support amendment to allow SSM in 2009: “But if you look at the poll numbers since November, they really haven’t moved at all.” (Marc Solomon of EC). Source: Jesse McKinley, Backers of Gay Marriage …, NYT 7/27/09)
“In fact, most public polling shows that support for homosexual marriage has peaked and retreated significantly from its high water mark.” (Statement of Ron Prentice, Executive Director, ProtectMarriage.com on Equality California Decision to Pursue a 2012 Election Repeal of Proposition 8, Aug. 12, 2009)
US: “According to a recent CBS/New York Times poll, support for gay marriage has dropped nine percentage points from a 42 percent historic high. According to Gallup, only 13 percent of Americans believe that gay marriage would make us better off, while 48 percent believe it would be change for the worse.“ Source: KJ Lopez, Winds Shifting (8/1/09 Op-Ed)
POLAND: “ Three quarters of people in Poland are against allowing homosexual couples to wed, according to a poll by GfK Polonia. 75 per cent of respondents oppose the legalization of same-sex marriage, while 87 per cent reject allowing same-sex couples to adopt children.” Angus Reid, Global Monitor (8/5/09)
Review/finish threats to civil rights from SSM ;
Six top family issues in 2009-10 (includes export/import)
What can be done? (President Hinckley: Standing for
How to do it: Stand up, speak up, civic involvement;
patience, charity, courage.
E. Why we must do it: (for ourselves, families, communities, nation, opponents,).
Examples: HI & AK 1998, CA 2008, MA parents, VT/NV - one vote 2009
F. Get “Anxiously Engaged and Actively Involved”
Legalizing SSM w/o express accommodation will cause a “sea change in American law” and diminution of protection for religions and persons of faith
Two categories of threats
Source: Letter to Hon. Chet Culver (Gov. IA) from Prof. Robin Fretwell Wilson, et al., July 9, 2009; also Same-Sex Marriage and Religious Liberty (2008).
Intolerant anti-religious responses to conflicting loyalties (God and State) re: marriage.
UK: - Sir Iqbal Sacranie, Gen. Sec’y Muslim Council of Britain investigated because said in interview gays could change with therapy (2006).
-Catholic school forced to retain principal who openly celebrated SSCU.
-Anglican bishop fined for refusing to hire openly gay youth minister.
-New Rules (eff. 2010) forbid churches fire/not hire employees (except clergy) because of sexual practices.
-Registrars who object to performing SSCUs pressured; one forced to resign; another harassed, demoted (sued but lost, no religious exemption).
-Pediatrician on adoption panel request to abstain from SSC/P adoptions denied; fired.
SWEDEN: - Pastor Ake Green prosecuted, convicted (SCt finally reversed) because quoted scriptures against homosexual behavior (prosecutor argued that other versions of the scriptures were available).
-New SSM law requires churches (at least some) to provide clergy to perform SSM ceremonies.
IRE: - ICCL warned RC bishops risk prosecution for hate speech for Vatican pamphlet against homsexual relations.
Source: Lynn D. Wardle, “Marriage and Religious Liberty: Comparative Law Problems and Conflict of Laws Solutions,” ISFL Regional Conference, Israel, June 7-9, 2009.
CAN: - BC denied teacher accreditation to Evangelical Free Church of Canada
- BCHRC held Knights Columbus liable for cancelling hall rental when learned for SS ceremony
-Ont HRTrib gets complaint v. RC diocense for $240,000 + atty fees for dismissing altar-server who was cohabiting w/ SS partner
US-MA: 12 JPs resign bec told must solemnize SSM as well as trad marr
[A recent poll of Massachusetts residents revealed that 36 percent of voters who oppose gay marriage agreed with the statement, "If you speak out against gay marriage in Massachusetts you really have to watch your back because some people may try to hurt you.“
Source: Mark Calli, Is the Gay Marriage Debate Over, Christianity Today, 24 July 2009, citing http://www.nationformarriage.org/site/c.omL2KeN0LzH/b.5075687/apps/s/content.asp?ct=7000219 .]
CA – 24/112 dep cnty clrks in SD asked for exemption (told would be reassigned other jobs 18 w/drew applications)
-Alameda county granted deputy county clerks (dcc) exemption if note from pastor
-Kern county stopped performing all marriages
-LA county required all employees (DCCs) to perform SSMs
-LA Times: 23 CA counties allowed DCCs accommodate, but 35 counties did not.
-North Coast Care Med. Group v. S.C., 139 P.3d 1 (CA 2008) no exemption for Dr. decline AI lesbian couple because religion, but (then) OK deny if not m’d.
-After Prop 8 passed, harassment, intimidation, stalking, vandalism, violence, discrimination against persons, businesses, churches that supported Prop 8.
CN: JPs can refuse to do any marriage (own discretion) but not town clerks.
VT: JPs can refuse to do any marriage but pattern/per se refusal prob illegal
IA: After Varnum Pub H Dept sent ltr all 99 county recorders: MUST do SSM
NM: HRC - Christian photographers liable for not photo SS cere $6,600 fees
Source: Lynn D. Wardle, “Marriage and Religious Liberty . . . .
2) Intimidation, harassment, persecution & abuse of power to promote the ssm agend
What happens when a same-sex couple that married in Massachusetts moves to a state that only recognizes civil unions, or that forbids both SSM and SSCUs (like UT)?
Such conflicts over importation and exportation of controversial domestic relationships (called “conflict of laws”) will dominate future legal arguments about same-sex marriage.
From Jan 2000 to April 2008, 22 federal/state conflicts decisions re: recognition of SSM/CU/Adopt.
Ten denied recognition.
Nine allowed recognition.
Rate of case occurrence is increasing each year!
General Rule: Marriage valid where performed (S-1), valid everywhere (S-2) – unless it violates the strong public policy of S-2.
Whether a sister state law violates strong public policy depends on whether it can overcome the presumption in favor of comity (courtesy/respect) to laws of other sovereign; public policy exception is narrowly construed.
However, priority for forum policies (lex fori) is a countervailing consideration.
Subjective, ambiguous standards give courts much wiggle room.
Importance of SMAs to cabin judicial manipulation of comity to force recognition.
Importance of federal DOMA (protects right of states to decide for themselves; neutral; prevents federal substantive law/ choice of law to impose SSM on states ).
3 pending suits v. DOMA (2 in MA, 1 in CA)
-President Obama’s DOJ is “defending” DOMA.
-DOJ memorandum filed defending DOMA in one suit was criticized by gays who think President is breaking his promise to them by defending DOMA.
-So latest DOJ memo said “we think DOMA is discriminatory and violation of equality, but court should uphold it anyway.”
“On Monday, Obama said he still wants to ditch the Defense of Marriage Act, calling the law discriminatory even as his administration defended it in court papers.” (Source: Nicole C. Brambila, State resolution urging marriage equality … 8/18/09)
“President Obama is sabotaging DOMA while pretending to defend it in court ….” (Maggie Gallagher, No Justice for Marriage, 8/19/09)
1st) Constitutional protection for conjugal marriage and the marital family (start with state constitutions)
To do: Organize and work for SMAs (and later FMA)
2d) Explicit Statutory Protections for Rights of Religious Conscience, and for parents’ rights.
To do: Organize and work for statutory protection of rights of conscience
Robin Fretwell Wilson et al proposal:
No individual, no religious or denominations organization, and no charitable or educational organization which is operated, supervised, or controlled by or connected with a religious organization, shall be liable, penalized, or denied benefits under the laws of this state, including but not limited to laws regarding employment discrimination, housing, public accommodations, licensing, government contracts or grants, or tax-exempt status, for refusing to provide services, accommodations, advantages, facilities, goods, or privileges related to the solemnization of any marriage, for refusing to solemnize any marriage, or for refusing to treat as valid any marriage, if such providing, solemnizing, or treating as valid would cause such individuals or organizations to violate their sincerely held religious beliefs, provided that
3rd) Get Informed
Some potential source:
Alliance Defense Fund Defend the Family
DefendMarriage.org (UFI) Doha Int’l Institute for Family
Studies & Development
DOMAWatch.org (ADF) Family Resource Council
Focus on the Family Heritage Foundation
Institute for Marriage & Public Policy National Organization for Marriage
ProtectMarriage.com Ruth Institute
Whatstheharm.org Others? (your suggestions)
Organize and read to get informed and share information with others of similar values
4th) Let your voice be heard respectfully and regularly
Write letters (emails) and leave phone for to government officials (President, Senator, Congressman, Governor, state senator, state representative, county officials, mayor, city council representative, and keep writing regularly.
Write letters to the editor of you newspapers, TV & radio stations re: their policies, positions, editorials, news coverage.
Discuss the issues appropriately with neighbors, friends, family, class-mates, co-workers, etc.
At meetings of candidates (precinct meetings, caucuses) ask questions about their policies and votes.
Organize and work to get fair information disseminated
5th) Support, recruit, provide good candidates
Attend meetings of candidates (precinct meetings, caucuses) and ask candidates questions about their policies and votes.
Recruit good persons to be candidates when none are running
Be willing to help good candidates with some of your time and $
Consider becoming a candidate for appropriate positions
Organize and work to get fair information disseminated
If we get angry, we have lost the battle.
Speak with a “public voice” addressing “public interests/ morality” not “private morality/interests”
26 For behold, it is not meet that I should command in all things; for he that is compelled in all things, the same is a slothful and not a wise servant; wherefore he receiveth no reward.
27 Verily I say, men should be anxiously engaged in a good cause, and do many things of their own free will, and bring to pass much righteousness;
28 For the power is in them, wherein they are agents unto themselves. And inasmuch as men do good they shall in nowise lose their reward.
29 But he that doeth not anything until he is commanded, and receiveth a commandment with doubtful heart, and keepeth it with slothfulness, the same is damned.
34 Teach them to never be weary of good works, but to be meek and lowly in heart; for such shall find rest to their souls.
D&C 6:33-34, 36
33 Fear not to do good, my sons, for whatsoever ye sow, that shall ye also reap; therefore, if ye sow good ye shall also reap good for your reward.
34 Therefore, fear not, little flock; do good; let earth and hell combine against you, for if ye are built upon my rock, they cannot prevail.
10 And now, my beloved brethren‑‑for ye ought to be beloved; yea, and ye ought to have stirred yourselves more diligently for the welfare and the freedom of this people; but behold, ye have neglected them insomuch that the blood of thousands shall come upon your heads for vengeance; yea, for known unto God were all their cries, and all their sufferings‑‑
11 Behold, could ye suppose that ye could sit upon your thrones, and because of the exceeding goodness of God ye could do nothing and he would deliver you? Behold, if ye have supposed this ye have supposed in vain.
Matthew 5:13-16 (compare 3 Nephi 12:13-16: “Verily, verily, I say unto you, I give unto you to be . . .”)
13 ¶ Ye are the salt of the earth: but if the salt have lost his savour, wherewith shall it be salted? it is thenceforth good for nothing, but to be cast out, and to be trodden under foot of men.
14 Ye are the light of the world. A city that is set on an hill cannot be hid.
15 Neither do men light a candle, and put it under a bushel, but on a candlestick; and it giveth light unto all that are in the house.
16 Let your light so shine before men, that they may see your good works, and glorify your Father which is in heaven.
To have a culture of humility you must deliberately cultivate respect for expression of differing points of view.
1) Know what your own worldview is.
2) Be open to understanding the worldview of others – be willing to listen to and to describe back other’s worldviews, not necessarily to agree with them, but to understand.
Be of Good cheer!!
We live in the “best of times” despite the adversity and challenges.
We have a great opportunity to “stand for something.”
By becoming informed and by speaking up appropriately, courageously respectfully, and by refusing to be intimidated or coerced into silence we can make a huge difference.
Thanks for coming!
Same-Sex Marriage Legal: Seven(7)* Nations and Six (6) USA States: The Netherlands, Belgium, Canada, Spain, South Africa,* Norway & Sweden (US: MA, CN, IA, VT, ME & NH [CA-overturned, ME ‘people’s veto’ pending])
Same-Sex Unions Equivalent to Marriage Legal in Thirteen Nations and Five US States: Denmark, Norway, Sweden, Iceland, Finland, France, Germany, Luxembourg, Slovenia, South Africa*, Andorra, Switzerland, UK, New Zealand (US: CA, NJ, OR, WA, NV) (CUs replaced by SSM in VT, CN, NH)
Global (US) Progress of Same-Sex Marriage, and Marriage Equivalent Civil Unions or Partnerships, 1985-2009
Same-Sex Marriage Prohibited by law or appellate court decision in Forty-two States:
(All but MA, CN, IA, VT, ME, NH, NM, RI & VT)
Same-Sex Marriage Prohibited by State Constitutional Amendment in Thirty (30) States:
(AK, AL, AR, AZ, CA, CO, FL, GA, HI, ID, KY, KS, LA MI, MS, MO, MN, NB, NV, ND, OH, OK, OR, SC, SD, TN, TX, UT, VI, & WI)
Same-Sex Civil Unions Equivalent to Marriage Prohibited by State Constitution Amendment in Nineteen (19) USA States
(AL, AR, FL, GA, ID, KS, KY, LA, MI, NB, ND, OH, OK, SC, SD, TX, UT, VI, WI)
Thirty-seven (37) of 191 Sovereign Nations (19%) Have Constitutional ProvisionsDeclaring Marriage = Union of Man and Woman: (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 – Dec. 2005), Lithuania (art. 31), Malawi (art. 22), Moldova (art. 18), Serbia (art. 62), Somalia (art. 2.7), Suriname (art. 35), Swaziland Constitution (art. 27), Tajikistan (art. 33), Turkmenistan (art. 25), Uganda (art. 31), Ukraine (art. 51), Venezuela (art. 77), Vietnam (art. 64). See also Mongolia (art. 16), Hong Kong Bill of Rights of 1991 (art. 19). (E.g., Article 110 of the Constitution of Latvia now reads: “The State shall protect and support marriage—a union between a man and a woman,…”)
Status of Law in USA (August 19, 2009) re:
Adoption of Children by Gay and Lesbian Couples & Partners
21 States and DC have statutes or appellate court rulings on whether same-sex couples/partners can adopt; seven other states have other legal developments that strongly suggest what the result will be; so in a total of 28 states + DC the issue is largely resolved. The issue is undecided in 22 states.
Adoption by homosexual individual not barred per se in most states.
Prohibited = 9 (AL, AR, FL, KY, MS, NE, OH, UT, WI)
Probably Prohibited = 1 (OK)
Total Prohibited or Probably Prohibited = 10 states
Allowed = 13 (CA, CO, CN, DC, IL, IN, ME, MA, NH, NH, NY, PA & VT)
Probably Allowed = 6 (IA, NC, NV, OR, TN, WA)
Total Allowed or Probably Allowed = 18 states + DC (19)
Undecided = 22 (AL, AZ, DE, GA, HI, ID, KS, LA, MD, MI, MN, MO, MN, NM, ND, RI, SC, SD, TX, VA, WV, WY)
The policy varies according to which branch of government took the initiative. As of 2006: In 11/16 sts where the courts had acted first allowed lesbigay adoption; In 4/5 states where a legislature acted first to address the issue, the rule adopted has barred lesbigay adoption.
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).
Vermont: Baker v. State, 744 A.2d 864 (Vt. 1999) (marr-equiv SSUs).
New Jersey: Lewis v. Harris, 908 A.wd 196 (N.J. 2006) (marr-equiv SSUs).
Eleven Constitutional Doctrines Invoked to Mandate Same-Sex Marriage orUnionsEleven Constitutional Doctrines Invoked to Mandate Same-Sex Marriage, Strike SMAs and DOMAs, etc.
-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