How Legalizing Same-Sex Marriages Harms Individuals, Families and Society: What’s the Harm and Is

There Hope to Prevent It? By Lynn D. Wardle

Bruce C. Hafen Professor of LawJ. Reuben Clark Law School, Brigham Young

University Presented to Interfaith Coalition

at the Parish of St. Mel, Fair Oaks, CA Sunday, October 10, 2008

Lest We Take Ourselves Too Seriously

• Bumper Sticker on Wife’s car: • “Sometimes in the morning I wake up

grumpy, but usually I just let him sleep!”

New Yorker cartoon: Mom to daughter: l honestly don't know what you’re waiting for: By the time I was your age, I’d been married and divorced twice."

Some Preliminary Points1) Thank you, Thank you, Thank You2) The issue Is About Marriage! 3) Calling a same-sex union a marriage does not

make it so.5) We didn’t choose but cannot avoid this

battle.

Harm to Individuals

• “It was the best of times it was the worst of times, it was the age of wisdom it was the age of foolishness, it was the epoch of belief it was the epoch of incredulity, it was the season of light it was the season of darkness, it was the spring of hope it was the winter of despair, we had everything before us we had nothing before us . . . .” Charles Dickens, A Tale of Two Cities (1859).]

•

The Worst of Times

• #1) Globally and in the United States, marriage and the marital family are under besieged by social and ideological influences that threaten and have greatly weakened these foundational social institutions. Radical social experiment threatens already-weak marriage.

• Today, the greatest challenges to the family today are from internal disintegration rather than external deprivation. None of contemporary dangers facing families are more threatening to the institution of marriage than the movement to legalize same-sex marriage

For example, in the USA:More than 50% of all couples cohabit before their

first marriages (2002); More than 40% of all marriages end in divorce

(2004); Nearly 37% of all births were out of wedlock

(2005); & Nearly 25% of all known pregnancies are aborted

(2005).

• #2) When Marriage and Marital Families Disintegrate, Society and Individuals Suffer, Struggle and Are Vulnerable.

Anthropologist David W. MurrayLegal Historian Charles Reid Law Professor John Witte

“As the family goes, so goes the nation, and so goes the world in which we live.” -- Pope John Paul II

• “When the home is destroyed, the nation goes to pieces.” – President Spencer W. Kimball, Ensign, May 1978.

• “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, (Interview with Mike Wallace)

• “ ‘I believe in the home as the foundation of society, as the cornerstone of the nation, and as the primary institution of the Church. I cannot conceive of a great people without great, good homes. . . . ’”

• Thomas S. Monson, Ensign 1997 November (quoting Stephen L. Richards).

Institute for American Values 2008 Study

• Public costs to American taxpayers of family marital break-up and of non-marital child-bearing (CBOW) in the United States, total at least $112 billion each year for American taxpayers– $70 Billion federal tax dollars and – $42 Billion state and local tax dollars each year.-- In California the public (tax) costs of family

fragmentation amount to $4.829 billion in taxes per year (11.5% of the total CA state and local tax burden).

3) Globally and in the United States, there is a strong movement to legalize SSM.

• Same-Sex Marriage Legal: Six* Nations and Three USA States: The Netherlands, Belgium, Canada, Spain, South Africa,* and Norway (2009) (US: 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 (US: CA, CN, NH, NJ, OR, VT).

• Same-Sex Unions Registry & Some Benefits in Seven Nations and Five US states: Argentina, Columbia, Croatia, Czech Republic, Hungary, Israel, Portugal (US: AK, DC, HI, ME & WA)

• Nations (0) With Constitutions Explicitly Requiring Same-Sex Marriage—None

• Nations (2) Where the Judiciary Has Required Same-Sex Marriage: Canada & South Africa (US States: MA & CA [+ VT & NJ sscu])

• Nations (4) Where the Political Branches Have Adopted Same-Sex Marriage: • The Netherlands, Belgium, Spain [*Norway law effective 2009]

Global (US) Progress of Same-Sex Marriage, and Marriage Equivalent Civil

Unions or Partnerships, 1985-2007

YEAR Same-Sex Marriage

Same-Sex Marriage-Equivalent

Unions/Partners1985 0 01990 0 11995 0 32000 0 6 (1)2005 3 (1) 13 (3)2007 5 15 (6)

2008Au 6* (2) 15 (6)

Conclusions:

Eleven Court Rulings Mandating Same-Sex Marriage

Hawaii:; Baehr v. Miicke, 196 WL 694235 (Haw. Cir. Ct. 1996), or remand from Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993), rev’d by constitutional amendment (1998).

Alaska: Brause v. Bureau of Vital Statistics, No. 3AN-95-6562, 1998 WL 88743 at 6 (Alaska. Super. Ct., Feb. 27, 1998) reversed by constitutional amendment (1998).

Massachusetts: Goodridge v. Department of Public Health, 798 N.E.2d 941, 943, 959 Mass. 2003); In re Opinion of the Justices to the Senate, 802 N.E.2d 565, 569-71 (Mass. 2004).

Oregon: Li v. State, 2004 WL 1258167 (Or. Cir. April 20, 2004), rev’d, 110 P.3d 91 (Ore. 2005).

Washington: Andersen v. King County, 2004 WL 1738447 *3,4,11 (Wash. Super. 2004) and Castle v. State, 2004 WL 1985215, *11 (Wash.Super. Sep 07, 2004), rev’d Andersen v. King County 138 P.3d963 (Wn. 2006).

Maryland: Deane v. Conway, Case No. 24-C-04-005390 (Cir. Crt. Balt. City, Md. Jan. 20, 2006), available at http://www.baltocts.state.md.us/civil/highlighted_trials/Memorandum.pdf , rev’d Conaway v. Deane 932 A.2d 571 (Md. 2007).

New York: Hernandez v. Robles, 794 N.Y.S.2d 579 (N.Y.Sup., Feb. 4, 2005) rev’d Hernandez v. Robles 855 N.E.2d 1 (N.Y. 2006).

California:In re Coordination Proceeding, Special Title [Rule 1550(c)] Marriage Cases, No. 4365, 2005 WL 583129 (Cal. Super. Crt. San. Fran., Mar. 14, 2005), aff’d In re Marriage Cases, 183 P.3d 384 (Calif. 2008).

Connecticut: Kerrigan v. Commissioner of Public Health, SC 17716 (Conn. Oct. 10, 2008)

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

#4) Same-Sex Marriage Damages Marriage & Harms Individuals, Families & Society , & Civil

Liberties, Especially Religious Liberty3 flaw with “the sky didn’t fall, so what’s the harm?”

1) It shifts the Burden of Proof2) It diverts attention from long-term harm issue.3) Already some harms are documented

SSM changes the “script” of marriageIt changes marriage by the “transformative power of

inclusion”

casualcasual

The Transformative Power of Inclusion

The qualities of same-sex relationships will redefine the acceptable characteristics and behaviors of marriage

Sexual promiscuity, fidelity, and multiple sex partners2003 AIDS Journal Dutch Study:

• - 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.

2006 Norway & Sweden: The divorce-risk levels were about 50% higher for registered gay men partnerships than for comparable heterosexual couples, and controlling for variables, the risk of divorce was twice as high (100-150% higher ) for lesbian couples as it was for gay men couples.

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.”

SSM seeks to change marriage. SSM is not marriage but “pseudomarriage” as Pope Benedict so aptly described it.

SSM is not a claim for tolerance but for special preference that denies and reduces the value of marriage.

Same-Sex Marriage Threatens Individual Civil Rights Including Religious Liberties.

Advocates of same-sex marriage seek to change marriage, not marriage

The claim for Same-Sex Marriage is Not a Claim for Tolerance

• 1,138 Federal laws, and 300-500 state laws • Changing the core definition of marriage in the law will lead to

clashes between law and religion.

• Those who oppose same-sex marriage will be simply bigots.• - Opposition to same-sex marriage be “invidious discrimination”

• Soup kitchens, homeless shelters, hospitals, social services agencies hurt.

• -In Massachusetts Boston Catholic Charities, had to shut down.• -Olive Branch adoption agency and Adoption.com in California• -

In California: • CA SCT decision weeks ago: Catholic doctor liable because

declined ART services to a lesbian• -Calif SB 777 and Calif double-standard student put-down case (“Elsewhere:• -Georgetown University • 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. • - Massachusetts numerous controversies • - 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 (administrator at College).• Suit against CDC counselor for referral (‘homophobic’) • - Ireland, ICCL warned that Catholic Bishops and clergy of hate

speech

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#5) SSM Threatens the Foundation of Our Constitutional Government - Virtue

“The idea of virtue was central to the political thought of the founders of the American republic. Every body of thought they encountered, every intellectual

tradition they consulted, every major theory of republican government by which they were influenced emphasized the importance of personal and public virtue.

It was understood by the founders to be the precondition for republican government, the base upon which the structure of government would be built.”

-Richard Vetterli & Gary Bryner, In Search of the Republic 1 (1996)

Benjamin Franklin declared that: “Only a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters.”

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 Infancey, they learn their Mothers live in Habitual Infidelity to their fathers, and their fathers in as constant Infidelity to their Mothers?”

“Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

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. “

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)

THE BEST OF TIMES:#6) Global Movement to Protect Marriage &

Protection of Marriage & Family is 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)

145 Nations (/191) with Constitutional Provisions on Family and Marriage

(Including 83 Nations with Substantive Protections of Marriage)

Thirty-Seven of 191 Sovereign Nations Have Constitutional Provisions/Amendments Protecting Conjugal Marriage

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,…”

#7) In the United States There Is A Grassroots Movement to Give Constitutional Protection to Conjugal Marriage and Marital Families That Surpasses the Movement for Same-Sex Marriage.

Same-sex Marriage in the US

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

27 States That Have Adopted Constitutional Amendments Protecting Conjugal Marriage and States

with Pending Votes on Marriage Amendments

ArizonaCalifornia

Florida

27 States with marriage amendments:

3 States with pending votes (Nov. 2008):

VOTER SUPPORT FOR STATE MARRIAGE AMENDMENTS

The average vote in favor of state marriages amendments in all of the states

combined is 69%.

The popular support in the state votes has ranged from a low of 57% in favor (OR)

to 84% in favor (MS).

Strong minority support for marriage

• 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.”

• 8) We Have the Chance to Stand Up for A Great Cause That Truly Matters. • Protection of Marriage is the greatest civil rights movmement in America in 50

years, and like the civil rights movement for racial equality, many of its great leaders of religious leaders and men and women of faith.

• Pope Benedict has declared: "The church cannot forsake announcing that, in accordance with the plans of God, marriage and the family are irreplaceable and do not allow for other alternatives."

• • As President Hinckley wrote in Standing for Something: • “We go to great lengths to preserve historical buildings and sites in our

cities. We need to apply the same fervor to preserving the most ancient and sacred of institutions – the family.

• What we desperately need today on all fronts . . . are leaders, men and women who are willing to stand for something. We need people . . . who are willing to stand up for decency, truth, integrity, morality, and law and order . . . even when it is unpopular to do so – perhaps especially when it is unpopular to do so.”

• #9) We can make a difference by our example.

• We can make a difference. President Monson said:• “Too frequently, women under-estimate their influence for good.

. . . – Thomas S. Monson, Ensign, November 1997

• We are called to “become as a city upon a hill which cannot be hid.”

• David Ben Gurion: “Israel was to spread morality throughout the universe. It was to do so not by conquest but by example.”

My experience in Basic Training (boot camp) at Ft. Knox, KY in summer 1970.

• #10) You Are Not Alone; Be Of Good Cheer.

• In his book, Standing for Something, President Hinckley wrote:• “[The family ] is . . . the most fundamental and basic unit of society.

And it deserves – no, it demands – our combined focus and attention. • “We go to great lengths to preserve historical buildings and sites in

our cities. We need to apply the same fervor to preserving the most ancient and sacred of institutions – the family.”

• “We cannot effect a turnaround in a day or a month or a year. But with enough effort, we can begin a turnaround within a generation, and accomplish wonders within two generations – a period of time that is not very long in the history of humanity.”

• -Gordon B. Hinckley, The Family, We Can Save Our Nation by Saving Our Homes in Standing for Something 143-45 (2000)

• Elie Wiesel, the Auschwitz survivor & great Nobel Prize winner said: • “I swore never to be silent . . . . We must take sides.”• “[O]ne person of integrity can make a difference, a different of life and

death.”

BE OF GOOD CHEER!John 16:33 “In the world ye shall have tribulation: but be of

good cheer; I have overcome the world.”Acts 27:20-25 “Paul stood forth . . . and said . . . “I exhort you to be of good cheer: for there shall be no lost of

any man’s life . . . [because last night an angel told me] Fear not, Paul; thou must be brought before Caesar; and lo, God hath given thee all them that sail with thee.

“Wherefore, sirs, be of good cheer . . . . D&“Wherefore be of good cheer and do not fear, for I the Lord

am with you and will stand by you” (D&C 68:6), and “Iwill lead you along,” (D&C 78:18), and “Let thy heart be of good cheer . . . Contend thou . . . morning and night; and day after day let thy warning voice go forth . . ..” (D&C 112:4-5)

May the Lord Bless You!!Thank You!!!

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