Transcript SISTERS SISTERS

Update on Prop 8 Litigation
& the Movement to Legalize
Same-Sex Marriage
Professor Lynn D. Wardle
Bruce C. Hafen Professor of Law
J. Reuben Clark Law School
Brigham Young University
For the Inland Empire JRCL Society
Friday, April 13, 2012
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.
(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: Seven (7) USA States (+ DC) ( + only 2 of 564
Indian Tribes)
Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York,
Washington (and the District of Columbia) (+ Maryland in 2013 unless ballot veto).
Same-Sex Unions Equivalent to Marriage Recognized in Nine (9) US States:
California, Nevada, New Jersey, Oregon, Illinois, Hawaii, Maryland, 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).
B. 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%.
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%)
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.
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
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.”
Global (US) Progress of Same-Sex Marriage, and Marriage Equivalent Civil Unions or
Partnerships, 1985-2011.
YEAR
Number of 193
Sovereign Nations (&
States) That Allow
Same-Sex Marriage
Number of 193 Sovereign
Nations (& States) That Allow
Same-Sex Civil Unions
1985
0
0
1990
0
1
1995
0
3
2000
0
6 (1)
2005
3
(1)
13 (3)
2007
5
(1)
15 (6)
2009Au
7
(6)
13 (5)
2012 Mar
9
(7 +DC) (+ 2/564 tr)
4.7% (14%) (00.4%)
15 (9)
7.7% (18%)
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.
....
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-
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-votesright-love-whomever-you-choose
1. 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-ahuman-right-according-to-European-ruling.html
See also http://pcwatch.blogspot.com/2012/03/homosexual-marriage-is-not-humanright.html
1. There is no constitutional
fundamente right to same-sex marriage
No textual protection for SSM
No SDP basis for finding SSM a fundament
right
2-part Test:
1) deeply rooted in the history and traditions of the
nation and/or
2) Essential to the concept of ordered liberty
SSM fails both prongs
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
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
-Gender-Integration Complementarity and the Uniqueness of
Marriage
The male-and-female requirement is essential to the jurisprudence
of marriage. Three of them are:
1)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.
2)Male-female marriages are different 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.
3)From a utilitarian perspective, same-sex marriage is ill-advised
because marriage has been customized over millennia for malefemale unions, and to push same-sex relations in that dual-gender
mold of marriage will frustrate qualities and deny needs of such
couples.
3. The Constitutional Structural
Implications of SSM
The “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, selfgovernment, willingness to sacrifice self-interest
for the public good) necessary for our
Constitutional Republic to function and survive.
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)
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)
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
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.libertytree.ca/quotes_by/patrick+henry.
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)
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
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)
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 socialcapital.
-We derive our “root paradigms” from our
families.
“As the family goes, so goes the nation, and
so goes the world in which we live.” -- Pope John
Paul II
“[M]arriage and 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).
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
4. 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
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
Two Recent Examples
Canadian court denies divorce to lesbian
couple from UK and FL, holding that their
same-sex marriage in Canada was not valid.
Parents of Sarah Farley vs. Jennifer Tobits to
receive Retirement funds of deceased Sarah;
named beneficiaries (Parents) vs. surviving
spouse (Jennifer) of Canadian same-sex
marriage between couple from Pennsylvania.
Transportability of Same-Sex
Marriage Status (cont’d)
• The Defense of Marriage Act was enacted by Congress
and signed into law by the President in 1996. The votes
in both houses of Congress in favor of enacting DOMA
were overwhelming and bi-partisan; the House of
Representatives passed DOMA by a vote of 342 to 67,
and the Senate approved DOMA by a vote of 85 to 14.
President Clinton signed DOMA without any threat of
veto or even any public criticisms of or objection to the
bill.
• But times changes.
• The nice thing about legislation (like DOMA) is that it can
be changed to reflect changing social values, if those
preferences really have changed.
Transportability of Same-Sex
Marriage Status (cont’d)
• DOMA was an express response to efforts to forcibly export
same-sex marriage into states where it is prohibited. It was
intended to protect “who decides” whether/when SSM will be
recognized by the States / Federal Government. It is
• DOMA “did not change the existing law regarding horizontal
(state-to-state) or vertical (state-federal) recognition of
domestic relationships, but merely codified the longestablished federal choice of law rule.
• As Dean Borchers observed: “Sometimes ideas gain
momentum through repetition. The idea that the Full Faith
and Credit Clause would require national recognition of a
same-sex marriage solemnized by one state is apparently one
of them. …[However,] this is a very dubious assertion.”
• The patchwork quilt” resulting is common (and desired and
healthy) in federal systems. It respects diversity and local or
specific control.
Transportability (Cont’d)
DOMA is primarily a structural Act. Purpose: to respond to threats to
the constitutional structure of the allocation of power to decide public
policy (SSM advocates were asserting that if any state legalized SSM
all states and federal agencies and courts would have to recognize
those SSMs).
DOMA Purpose: to answer the question: “Who decides whether SSM
is recognized?
Thus, DOMA protects the horizontal and vertical allocation of authority
to states and to Congress to decide SSM recognition issue.
DOMA is primarily substantively neutral (all sec 2, status quo sec 3.)
DOMA is consistent with long-established US and American State
marriage recognition rules, and with general international marriage
recognition rules
Taking A “Dive” on DOMA
1) DOMA was successfully defended & upheld in
every (5) suit challenging DOMA from the time it
was enacted until Obama/Holder took over.
2) O/H refused to make the same arguments that
had succeeded and presented a “tepid” (WaPo)
defense.
3) After the first federal district court ruled against
DOMA in 2010, O/H announced that the DOJ
would no longer defend DOMA.
4) Speaker Boehner (H/R) is defending DOMA.
Why Obama’s Refusal to
Defend DOMA is Indefensible
1) This is not a case where congress did not consider
constitutionality.
2) This is not a case the Executive said it was unconstitutional;
Clinton DOJ said it was OK 16 years ago. Some shift in opinion
but still 31 states SMAs or statutes recently so not relic of prior
era.
3) Has been defended by prior administrations with success. Not
desuetude.
4) Not a case where President has superior expertise (like military
or foreign policy).
5) Not case where harm SG relationship with SCOTUS.
6) Insincere defense is no excuse; career lawyers in DOJ like to win
and fight hard. (Kudos Prof David Meltzer)
Real reason for refusal to defend DOMA is political; politicizing DOJ.
Federalism in Family Law in
DOMA
• The purpose of both Section 2 & Section 3 of
DOMA is to preserve federalism (horizontal and
vertical). States define for state law and domestic
relations generally, Congress defines terms for
federal law and specific programs.
• It is ironic that opponents of Section Three of
DOMA now are arguing that federalism is
weakened or impaired by DOMA. Their goal is to
pressure, coerce, and force the states into
legalizing same-sex marriage by the use of federal
power.
• However, the dilemma is two-edged.
Transportability of Same-Sex
Marriage Status
It is reasonable for people to want their important personal
relationships to be recognized in other jurisdictions.
As Justice Jackson stated in his dissent in Estin v. Estin, “If there is one
thing that the people are entitled to expect from their lawmakers, it is
rules of law that will enable individuals to tell whether they are married
and, if so, to whom.”
NB: Justice Jackson did not say that people are entitled to expect rules
that will make valid whatever marriages they contract, wherever they
contract them, or with whomever they contract them. Rather, he
declared that the people are entitled to know the rules that will
determine marriage validity and recognition. That gives them the ability
to plan their lives and structure their conduct with some significant
measure of predictability.
Marriages are of such profound importance to such significant
public interests that all states regulate marriage and marriage
recognition.
5. Same-Sex Marriage Erodes Civil Rights and
Especially 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.
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
• 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
• 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….”
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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
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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
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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).
California “Kristallnacht”
The New Look of “Tolerance” in
California
Posted 2 days after Prop 8
passed
Source: http://yesproposition8.blogspot.com/2008/11/beauty-of-no-crowds-tolerance.html
Latter-day Saints and California Proposition 8 at http://en.fairmormon.org/Latterday_Saints_and_California_Proposition_8
http://www.meridianmagazine.com/ideas/081110hate.html
http://www.meridianmagazine.com/ideas/081110hate.html
http://www.meridianmagazine.com/ideas/081110hate.html
http://www.meridianmagazine.com/ideas/081110hate.html
http://www.meridianmagazine.com/ideas/081110hate.html
http://www.meridianmagazine.com/ideas/081110hate.html
http://www.meridianmagazine.com/familyleadernetwork/081114tolerance.html (Nov. 24, 2008)
Source: http://yesproposition8.blogspot.com/ and http://www.lifesitenews.com/ldn/2008/nov/08111816.html (seen
081124)
Video Shows Gay 'Marriage' Backers Terrorizing Cross-Carrying Elderly Woman and Reporter
http://www.lifesitenews.com/ldn/2008/nov/08111010.html
Prop. 8 protesters march in Salt Lake City, Daily Universe Nov. 10,
2008
http://newnewsnet.byu.edu/story.cfm/70166
More than mischief: Recent activity on Proposition 8
By Steve Gehrke
The Salt Lake Tribune
Salt Lake TribuneUpdated:11/24/2008 01:17:12 PM MST
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Highlights of recent proposition 8-related crimes:
Lansing, Mich. » Services at an evangelical church were disrupted by members of an extremist group called Bash Back! An affiliated
group claimed it poured glue into the locks of an LDS church building near Olympia, Wash., and spray painted its walls.
Riverside, Calif. » Forty to 50 signs supporting Proposition 8 were found arranged in the form of a swastika on the front lawn of a Roman
Catholic church.
San Luis Obispo, Calif. » Vandals poured adhesive on a doormat, key pad and window at two LDS churches and peppered a nearby
Assembly of God church with eggs and toilet paper.
Sacramento » Ten area church buildings were vandalized, according to The Sacramento Bee.
Orangevale, Calif. » An LDS chapel sign and walkways were tagged with the phrases, "No on 8" and "hypocrites."
Arapahoe County, Colo. » The Arapahoe County Sheriff's Office is investigating a case of a Book of Mormon that was set on fire and left
burning on an LDS church's doorstep as a bias-motivated arson.
Wasatch Front » More than seven LDS churches have had glass doors shattered, six of them by BB gunshots.
LDS temples in Salt Lake City and Los Angeles » The temples, along with a Catholic Knights of Columbus printing press in
Connecticut, all received packages with white powder substances in the mail.
Syracuse » A Syracuse Junior High seminary was evacuated after a mysterious letter was sent to the building
Weber State University » A plastic plant was lit on fire inside a Weber State University Institute building after an evening talk given by
LDS Apostle Elder Boyd K. Packer.
Farmington » Farmington police are looking for a person who spray painted "Nobody is born a biggot" (sic) on a concrete wall outside an
LDS church.
A Torrance, Calif.» A man is charged with a felony hate-crime assault for allegedly using an anti-gay marriage lawn sign to attack a gay
man wearing a "No on 8" button
San Jose, Calif.» Police were called to a house in the southern part of town after homeowners reported their garage had been spraypainted with "No on 8" messages. The homeowners had signs on their lawn supporting the measure
Sacramento suburb » Police arrested three teens after finding 53 stolen "Yes on 8" signs in their car
Salt Lake City » A man reported his lawn sign, opposing the LDS church's role in politics, was set on fire outside his home near 900 East
and 900 South
Sources: The Associated Press and Salt Lake Tribune reports
At http://www.sltrib.com/News/ci_11062014 (seen 081124)
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
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
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
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
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’d In 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.
Court Rulings Mandating Same-Sex Marriage, cont’d
3 Federal Court Court rulings 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.)
Court Rulings Mandating Same-Sex Marriage, cont’d
5 Federal Court Court rulings 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’g 497 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 Bkcy Rptr 567,__ F. Supp. __ (C.D. Cal. 2011) (20 bankruptcy judges rule that
DOMA fails “heightened scrutiny” and is unconstitutional, citing AG Holder Letter).
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 samesex marriages from being entered into.)
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 samesex 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.)
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)
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