The Need for Constitutional Protection For MarriageBy Lynn D. WardleBruce C. Hafen Professor of LawJ. Reuben Clark Law School, Brigham Young University*Presented at the Panel Discussion on Prop 102: Implications for Marriage, Family and State Co-sponsored by the J. Reuben Clark Law Society (Phoenix Chapter), the Alliance Defense Fund, the Christian Legal Society, and the Center for Arizona Policy Phoenix History Museum, Thursday, October 23, 2008, 12:00 noon. * Professional Views of Author; not speaking for any institution.
A. Lest We Take Ourselves Too Seriously –
Bumper Sticker on Wife’s car:
1) Thank You. Thank You! THANK YOU!!
2) The issue is about Marriage!
Don’t get distracted!; its only about marriage!
3) Advocates of same-sex marriage seek to change marriage, not marriage. Calling a same-sex union a marriage does not make it so.
4) Protection of Marriage is a Civil Rights Cause.
5) The claim for Same-Sex Marriage is Not a Claim for Tolerance
6) All Relationships are NOT Equal .
7) We did not choose, but cannot avoid, this battle.
Prop 102 adds twenty simple words to the Constitution of Arizona:
“Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”
It does not change Arizona marriage law (Standhardt).
It does provides constitutional protection for marriage to prevent judicial legalization or interstate recognition of same-sex marriage (see Goodrich, Marriage Cases, Kerrigan) in Arizona.
Proponents of SSM and your Governor would have you believe that it can’t happen here in AZ.
Ask the people of HI, AK, MA, CA, and now CN!!
Hawaii:; Baehr v. Miicke, 196 WL 694235 (Haw. Cir. Ct. 1996), on remand from Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993), rev’d by constitutional amendment (1998).
Alaska:Brause v. Bureau of Vital Statistics, No. 3AN-95-6562, 1998 WL 88743 at 6 (Alaska. Super. Ct., Feb. 27, 1998) reversed by constitutional amendment (1998).
Massachusetts:Goodridge v. Department of Public Health, 798 N.E.2d 941, 943, 959 Mass. 2003); In re Opinion of the Justices to the Senate, 802 N.E.2d 565, 569-71 (Mass. 2004).
Oregon: Li v. State, 2004 WL 1258167 (Or. Cir. April 20, 2004), rev’d, 110 P.3d 91 (Ore. 2005).
Washington: Castle v. State, 2004 WL 1985215, *11 (Wash.Super. Sep 07, 2004), and
Andersen v. King County, 2004 WL 1738447 *3,4,11 (Wash. Super. 2004) rev’d 138 P.3d963 (Wn. 2006).
Maryland: Deane v. Conway, Case No. 24-C-04-005390 (Cir. Crt. Balt. City, Md. Jan. 20, 2006), available at http://www.baltocts.state.md.us/civil/highlighted_trials/Memorandum.pdf , rev’d Conaway v. Deane 932 A.2d 571 (Md. 2007).
New York: Hernandez v. Robles, 794 N.Y.S.2d 579 (N.Y.Sup., Feb. 4, 2005) rev’d855 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).
Connecticut: Kerrigan v. Commissioner of Public Health, SC 17716 (October 16, 2008) – JUST LAST WEEK!
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).
-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
Protection of Marriage & Family is 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.”
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
Antigua & Barbuda
Central African Republic
Costa Rica *
East Timor *
El Salvador *
Equatorial Guinea *
North Korea *
Papua New Guinea
South Korea *
Trinidad and Tobago
United Arab Emirates
*= protects both marriage & family
No * = protects family only
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)
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
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,…”
Same-Sex Marriage is explicitly prohibited by written law in 45 states (all states except Connecticut, Massachusetts, New Jersey, New Mexico, and Rhode Island*).
27 States with marriage amendments:
3 States with pending votes (Nov. 2008):
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)
*ARIZONA PROP 102 fits here – Most modest Protection
Eighteen SMAs Protect Substance of Marriage (Forbid Giving Equivalent Substance to DPs or CUs):
AL, AR, GA, ID, KS, KY, LA, MI, NB, ND, OH, OK, SC, SD, TX, UT, VI, WI
E.g., “Marriage consists only of the legal union between a man and a woman. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.”Utah Const., Art. I, sec. 29 (2004)
One SMA Protects Government Structure (Legislature Can Ban SSM):
“The Legislature shall have the power to reserve marriage to opposite-sex couples.” Haw. Const., Art. I, sec. 23 (1998)
The average vote in favor of state marriages amendments in all of the states combined is nearly 69%.
The popular support in the state votes has ranged from a low of 57% in favor (OR) to 84% in favor (MS).
In only one state (AZ) have voters considered and rejected a SMA.
(2008 = second chance: to correct the embarassing mistake.)
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 is Different!!!
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.”
Loving struck down an attempt by racial eugenicists to “capture” marriage (by redefining it) to promote their ideology and social agenda.
Similarly, same-sex marriage is an attempt by gay rights activists to “capture” marriage (by redefining marrige) to promote their ideology and social agenda.
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)
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.
4) Already some harms evident.
Compare to other radical structural redefinition of marriage:
-Fa-Dau marriage? Polyamory? Polygamy? Teen Marriages?
Would these affect you? Your family? Society?
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.
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 . . . .”
“Support for marriage is by far the weakest in countries with same-sex marriage. The countries with marriage-like civil unions show significantly more support for marriage. The two countries with only regional recognition of gay marriage (Australia and the United States) do better still on these support-for-marriage measurements, and those without either gay marriage or marriage-like civil unions do best of all.”
Free speech rights have already been abused: effort to “silence” oppons
San Francisco Board of Supervisors Resolution against Catholic Adoption Policy
San Francisco BS Resolution against Evangelical youth organization
New Mexico Photographers forced into court, ordered to pay nearly $7,000 in attorneys fees for not photographing same-sex commitment ceremony
Judges/Magistrates/Registrars punished, forced to resign
It’s not marriage. Including same-sex couples will transform 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%. . . .”
When these relationships are “marriages” it will transform the social understanding and expectations of marriage.
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
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)
1) History - 1787
3) Deliberately Difficult Amendment Process (only 16 amendments in past 217 years since the original Bill of Rights)
1) History – SSM only recently an issue, a threat
2) Inertia - Difficult process (e.g., MA)
3) Intimidation - Extreme political hard-ball and hostility
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)
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)
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.)
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