The Need for Constitutional Protection For MarriageBy Lynn D. WardleBruce C. Hafen Professor of LawJ. Reuben Clark Law School, Brigham Young University*Presented at Nova Southeastern Law Center Debate on Amendment 2 & Same-Sex Marriage Sponsored by the Federalist Society Monday , October 27, 2008, 12:00 noon. * Professional Views of Author; not speaking for any institution.
Audience Survey • How many believe that the state constitution should be amended to prohib SSM (support Amend 2)? Y____ N____ Un____
I. Introduction: Perspective & Context A. Lest We Take Ourselves Too Seriously – >>>
Mom to daughter: l honestly don't know why it’s taking you so long to get married!! By the time I was your age, I’d already been married twice."
Six Preliminary Points 1) The issue is about Marriage! Don’t get distracted!; its only about marriage! 2) Advocates of same-sex marriage seek to change marriage, not marriage. Calling a same-sex union a marriage does not make it so. 3) Protection of Marriage is a Civil Rights Cause. 4) The claim for Same-Sex Marriage is Not a Claim for Tolerance 5) All Relationships are NOT Equal . 6) We did not choose, but cannot avoid, this battle.
Florida Proposed Amendment 2 Amendment 2 adds thirty-seven (37) simple words to the Florida Constitution: "Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized." (Fla. Sec’y State) It does not change Florida marriage law. It does provides constitutional protection for marriage to prevent judicial legalization or interstate recognition of same-sex marriage (see Goodrich, Marriage Cases, Kerrigan) in Florida.
TOP TEN MYTHS:#1) No NEED for Amend 2! Push to legalize SSM. • Same-Sex Marriage Legal: Six* Nations and Three USA States: The Netherlands, Belgium, Canada, Spain, South Africa,* and Norway (2009); and 3 US states (MA & CA & CN) • Same-Sex Unions Equivalent to Marriage Legal in Thirteen Nations and Six US States: Denmark, Norway, Sweden, Iceland, Finland, France, Germany, Luxembourg, Slovenia, South Africa*, Andorra, Switzerland, UK, New Zealand; subord jxns (Aus. Cap. Terr.); and some US (CA, CN, NH, NJ, OR, VT). • Same-Sex Unions Registry & Some Benefits in Seven Nations and Five US states: Argentina, Columbia, Croatia, Czech Rep., Hungary, Israel, Portugal; subord jxns (South Aus, Tasmania, Victoria, recent Fed laws.); & some US (AK, DC, HI, ME & WA).
Global (US) Progress of Same-Sex Marriage, and Marriage Equivalent Civil Unions or Partnerships, 1985-2007 Conclusions:
#2) It Can’t Happen Here in FL? Opponents of Amendment 2 would have you believe that it can’t happen here in FL. Just Ask the people of HI, AK, MA, CA, and now CN!!
Eleven Court Rulings Mandating Same-Sex Marriage 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) – This Month!
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).
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
#3) Constitutional Protection for Marriage is Radical and Marginal and Rare! 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
Most national constitutions adopted in the past 60 years also have included express constitutional protection for marriage and/or family.
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
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
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,…”
#4) It is Un-American! Same-Sex Marriage is explicitly prohibited by written law in 45 states (all states except Connecticut, Massachusetts, New Jersey, New Mexico, and Rhode Island*).
Most States Have Adopted Constitutional Amendments Protecting Conjugal Marriage (SMAs) ; 3 More States Pending Votes on SMAs 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):
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) **FLORIDA’S AMENDMENT 2 Will be in this category 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)
VOTER SUPPORT FOR STATE MARRIAGE AMENDMENTS 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; correct the mistake.)
#6) It Threatens Minorities! 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.”
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%
#7) Equal Rights (Loving) Supporters Oppose SMAs! 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.
#8)Gender Equality Supporters Opposes SMAs! 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)
#9) What’s the Harm of Legalizing Same-Sex Marriage? No Harm!! 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?
Response to “No Harm” 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 . . . .”
Surveys of 50,000 adults in 35 nations David Blankenhorn, The Future of Marriage “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.”
Threats to Civil Rights Already Manifest • MA: Boston Catholic Charities forced to shut down adoption services. • CA SCT decision : Catholic doctor legally liable (if facts) because declined ART services to a lesbian; no religious exemption • Suit involving CDC counselor for referral (‘homophobic’) • -Georgetown University club; Yeshiva Univ. married student housing • United States, the Boy Scouts denied privileges and public facilities. • -Canada, Knights of Columbus was held liable -Hospital (abortion already, so same-sex marriage, also) • -Educators and schools are vulnerable. (Middle-school Cross-dressing day, 1st Grade field trip to see teachers’ SF lesbian wedding, MA Parker, etc.) • - British Columbia, Trinity Western University denied accreditation Free speech rights have already been abused: effort to “silence” oppons • -Sweden Pentacostal Pastor Ake Green • -Similar cases have been reported in Canada and England & PA & OH (African-American administrator at college in OH). • - Ireland, ICCL warned that Catholic Bishops and clergy of hate speech
Violation of Civil Rights • Hyatt Hotel in San Diego – boycott to punish • - AALS partially supports the boycott 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
#10) Just Open Up Marriage, More Inclusive?Transform understanding & expectations of marriage. 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: - 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 “modal range for number of sexual partners ever . . . was 101-500,” Kirk and Madsen reported in their that “the cheating ratio of ‘married’ gay males, given enough time, approaches 100%. . . .
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We must speak up and stand up • Hurrican Katrina 2006 • BYU Physicial Sciences textbook being printed as storm hit New Orleans warned that levees in New Orleans a disaster waiting to happen. • It did, that time. Over 1800 killed and billions in property loss. • Same-sex marriage is another deadly storm approaching. • We have a duty to warn .