Whats the Harm Changes and Challenges in Family Law by Lynn D. Wardle Bruce C. Hafen Professor of La

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Whats the Harm? Changes and Challenges in
Family Law by Lynn D. Wardle Bruce C. Hafen
Professor of Law J. Reuben Clark Law School,
Brigham Young University Presented at BYU
Education Week, August 18, 2009
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• Administraton
• Thanks BYU Education Week, Brother Carlile,
  Brother Payne
• Introduce Teacher (Law Prof 31 yrs Past Pres
  ISFL ALI AUL NRLC 10 books gt100 law review
  articles/ book chapters lectures/presentations
  in gt22 nations gt 25 US law schools)
• Introduce Class (CA, other states where SSM
  issues)
• Resources No handouts (BYU Ed Week policy) so
  take notes!
• 1) Marriage Family Law Research Project website
  
• http//www.law2.byu.edu/organizations/marriage_fa
  mily/index.php
• (symposia, presentations, draft papers, slides,
  links)
• 2) Whats the Harm? Does legalizing same-sex
  marriage really harm individuals, families or
  society? (Univ. Press Am. 2008) Y
• 3) Same-Sex Marriage A Debate (Praeger 2003) N
  

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Lest We Take Ourselves Too Seriously

• Slogan on a T-Shirt
• Marriage is a great institution but who wants
  to spend their life in an institution?

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• Audience Survey
• How many believe that SSM should be legalized?
• Y____ No_____ U/N/A______
• How many believe that marr-equiv SSCU should be
  legalized? Y____ No_____ U/N/A______
• How many believe that state constitutions should
  be amended to prohibit SSM?
• Y__ N__ U/N/A__
• How many believe that adoptions by SS
  couples/partners should be legally permitted?
• Y__ N__ U/N/A__

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• Outline of Four Lectures
• DAY 1 (TUES) The Best of Times, the Worst of
  Times
• External vs Internal Threats to the Family
• Developments in the US and world re SSM, SSCU,
  LGAd
• DAY 2 (WED) Whats the Harm? Does legalizing
  same-sex marriage and gay parenting really harm
  individuals, families or society?
• How these developments threaten individuals, and
  families and society
• Exporting and importing same-sex marriage,civil
  unions, LGAds
• DAY 3 (THURS) Marriage, Virtue, and the
  Foundation of American Constitutional Government
• The Founders, Republican Virtue and the political
  importance of Marriage Family
•  Why Virtue and Marriage Still Matter Today
• DAY 4 (FRI) The Future for Families Effective
  Influence
• Three main Issues in next 12-15 months
• Working Effectively to Make the World Better for
  Families

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• Lecture 1 The Best of Times, the Worst of
  TimesRecent Developments in Families and Family
  Law
• 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).
•  

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• Lecture 1 The Best of Times, the Worst of
  TimesOutline
• Contrast between External Internal Improvement
  vs. Disintegration
• The Worst of Times re Redefining Family
• 1. Developments in the US, pro-same-sex
  marriage and civil unions
• 2. Developments in the US, pro-gay adoption
  children (CBOW)
• 3. Developments globally, pro-SSM
• 4. Developments globally pro-gay adoptions
  children (CBOW)
• C. The Best of Times re Redefining Conjugal
  Family
• 1. Developments in the US, protecting
  marriage
• 2. Developments in the US, protecting
  adoption children
• 3. Developments globally, protecting
  marriage (37 nations)
• 4. Developments globally protecting
  marital adoptions (EU polls)
• 5. 2009 changes moving to expensive pews
  but not crossing the aisle
• D. Challenges and Opportunities for
  Individuals, Families and Society
• E. Goals Information, Analysis,
  Teach/Exemplify Speaking Knowledgeably,
  Respectfully Forthrightly.

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A. Contrast between External Internal
Improvement vs. Disintegration

• 20th Century Dramatic Improvements in External
  Conditions for Families
• Health life-expectancy
• Education literacy
• Employment
• Income wealth
• Living working conditions
• Political freedom.
• Dramatic deterioration in Internal Conditions for
  Families
• CBOW Abortion
• Cohabitation
• Divorce
• Parental Child-rearing
• SSM and LGAd

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Marriages in the USA, 1960-2005
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DIVORCE INCIDENCE AND RATES IN THE UNITED STATES,
1920-2005
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Unmarried Cohabitants in USA, 1970-2006

• Year Unmd P Hhlds Hhlds SSP Hhlds
  Total UPH
• 1970 523,000 0.8
• 1980 1,589,000 2.0
• 1990 3,668,000 3.1
• 2000 5,500,000 4.3
• 2006 6,017,462 5.4 770,267 0.7 111,617,400
• Source Statistical Abstract of the United States
  1994 at 56 58 id. 1996 at Table 61 62 id.
  2000 at tables 57 60 id., 2009, Table 62.

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U.S. CHILDREN BORN OUT OF WEDLOCK, 1940-2007
Source Statistical Abstract of the United States
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Utah Children born to Unwed Mothers, 1970-2005
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Abortions, 1972-2005
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Abortions 1972-2005 (AGI data)
The Alan Guttmacher Institute produces the most
reliable data on abortions in the United States.
However, even the AGI estimates that 3-6 of all
abortions are unreported. (CDC data is usually
12-19 lower than AGI because of CDCs passive
methods.)
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Many women obtaining abortions have had a
previous abortion, but the proportion has
stabilized over time(GITiA08)
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U.S. Families with Children, 1990-2007
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Legal Status of Marriage As Union of Man and
Woman in the United States and the World

• August 1, 2009

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I. Push Nations (/191) States (/50) Allowing
Same-Sex Marriage/Unions

• Same-Sex Marriage Legal Seven(7) Nations and
  Six (6) USA States The Netherlands, Belgium,
  Canada, Spain, South Africa, Norway Sweden
  (US MA, CN, IA, VT, ME NH CA-overturned, ME
  peoples veto pending)
•  
• Same-Sex Unions Equivalent to Marriage Legal in
  Thirteen Nations and Five US States Denmark,
  Norway, Sweden, Iceland, Finland, France,
  Germany, Luxembourg, Slovenia, South Africa,
  Andorra, Switzerland, UK, New Zealand (US CA,
  NJ, OR, WA, NV) (CUs replaced by SSM in VT, CN,
  NH)
•  
• Same-Sex Unions Registry Some Benefits in Seven
  Nations and Three US states Argentina,
  Columbia, Croatia, Czech Republic, Hungary,
  Israel, Portugal (US AK, HI, MD, DC)
  (Hungarian Constitutional Court invalidated
  domestic partnership law as degrading marriage
  081215)
• Nations (0) With Constitutions Explicitly
  Requiring Same-Sex MarriageNone
• 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 Sweden

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Global (US) Progress of Same-Sex Marriage, and
Marriage Equivalent Civil Unions or Partnerships,
1985-2009
Conclusions
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II. Response A. U.S. States Barring Same-Sex
Marriage/Unions

• Same-Sex Marriage Prohibited by law or appellate
  court decision in Forty-two States
• (All but MA, CN, IA, VT, ME, NH, NM, RI VT)
• Same-Sex Marriage Prohibited by State
  Constitutional Amendment in Thirty (30) States
• (AK, AL, AR, AZ, CA, CO, FL, GA, HI, ID, KY, KS,
  LA MI, MS, MO, MN, NB, NV, ND, OH, OK, OR, SC,
  SD, TN, TX, UT, VI, WI)
• Same-Sex Civil Unions Equivalent to Marriage
  Prohibited by State Constitution Amendment in
  Nineteen (19) USA States
• (AL, AR, FL, GA, ID, KS, KY, LA, MI, NB, ND, OH,
  OK, SC, SD, TX, UT, VI, WI)
•  

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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 (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 nearly 67)

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Additional USA Developments Protecting Marriage

• Maine peoples veto (100,000 signatures on
  petitions submitted 7/31/09 (well over 55,000
  required)
• Iowa polls (after Varnum SCt ruling) 67 people
  oppose SSM. 2010 con-con Q on ballot
• CA after much blustering and threatening and
  beginning to collect signatures, major gay
  marriages orgs in CA will not support amend to
  overturn Prop 8 in 2010.

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• Nations (/191-UN) Barring
• Same-Sex Marriage/Unions
• One hundred fifty-one (151) Nations (/191) have
  Constitutional Provisions Protecting marriage
  an/or family.
• Eighty-five (85) Nations (/191) Have Substantive
  Constitutional Provisions Protecting marriage
• (By Comparison Homosexual Relations Still are
  Illegal in 67 Nations (and a capital offense in
  9 Nations)
• Major Sources Sodomy Laws, Laws Around the
  World, last updated June 2, 2006, availabe at
  httpsodomylaws.org/world/world.htm (last seen 16
  July 2008) Elizabeth Kukura, Finding Family
  Considering the Recognition of Same-Sex Families
  in Human Rights Law and the European Court of
  Human Rights, 13 Hum. Rts. Br. 17, 17-18 (Iss.
  No. 2, Winter 2006) National Conference of State
  Legislatures, Same Sex Marriage (Jan 2007),
  available at http//www.ncsl.org/programs.cyf/same
  sex.htm (homosexual relations capital crime in
  Afghanistan, Iran, Mauritania, Nigeria, Pakistan,
  Saudi Arabia, Sudan, UAE, Yemen)

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Thirty-seven (37) of 191 Sovereign Nations (19)
Have Constitutional Provisions Explicitly or
Clearly Adopting Conjugal Marriage Form - Union
of Man and Woman

• Armenia (art. 32), Azerbaijan (art. 34), Belarus
  (art. 32), Brazil (art. 226), Bulgaria (art. 46),
  Burkina Faso (art. 23), Cambodia (art. 45),
  Cameroon (art. 16), China (art. 49), Columbia
  (art. 42), Cuba (art. 43), Ecuador (art. 33),
  Eritrea (art. 22), Ethiopia (art. 34), Gambia
  (art. 27), Honduras (art. 112), Japan (art. 24),
  Latvia (art. 110 Dec. 2005), Lithuania (art.
  31), Malawi (art. 22), Moldova (art. 18), Serbia
  (art. 62), Somalia (art. 2.7), Suriname (art.
  35), Swaziland Constitution (art. 27), Tajikistan
  (art. 33), Turkmenistan (art. 25), Uganda (art.
  31), Ukraine (art. 51), Venezuela (art. 77),
  Vietnam (art. 64). See also Mongolia (art. 16),
  Hong Kong Bill of Rights of 1991 (art. 19).

Examples 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 now reads The State shall protect and
support marriagea union between a man and a
woman,
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• The Universal Declaration of Human Rights adopted
  1946, recognizes that the family is the
  natural and fundamental group unit of society and
  is entitled to protection by society and the
  State.

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35 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 on 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

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• 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 Peoples 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
  1924
• United Nations General Assembly Universal
  Declaration of Human Rights
• Declaration of the Rights of the Child
• Proclamation of Tehran
• Declaration on Social Progress and Development
• Declaration on Social Progress and Development
• Declaration on the Rights of Mentally Retarded
  Persons

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• 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
• Proposed American Declaration on the Rights of
  Indigenous Peoples

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III. Adoption by Same-Sex Couples Partners

• Status of Law in USA (August 19, 2009) re
• Adoption of Children by Gay and Lesbian Couples
  Partners
• 21 States and DC have statutes or appellate court
  rulings on whether same-sex couples/partners can
  adopt seven other states have other legal
  developments that strongly suggest what the
  result will be so in a total of 28 states DC
  the issue is largely resolved. The issue is
  undecided in 22 states.
• Adoption by homosexual individual not barred per
  se in most states.
•  
• Prohibited 9 (AL, AR, FL, KY, MS, NE, OH, UT,
  WI)
• Probably Prohibited 1 (OK) 
• Total Prohibited or Probably Prohibited 10
  states
•  
• Allowed 13 (CA, CO, CN, DC, IL, IN, ME, MA,
  NH, NH, NY, PA VT)
• Probably Allowed 6 (IA, NC, NV, OR, TN, WA)
• Total Allowed or Probably Allowed 18 states
  DC (19)
• Undecided 22 (AL, AZ, DE, GA, HI, ID, KS, LA,
  MD, MI, MN, MO, MN, NM, ND, RI, SC, SD, TX, VA,
  WV, WY)
• The policy varies according to which branch of
  government took the initiative. As of 2006 In
  11/16 sts where the courts had acted first
  allowed lesbigay adoption In 4/5 states where a
  legislature acted first to address the issue, the
  rule adopted has barred lesbigay adoption.

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Number of Children in the USA Being Raised by
Same-Sex Partners

• Activist estimates 1M, 4M, 6M, 14 Million
  children 1.5-6M couples Grossly inflated (or
  premature?)
• LDW 300,000 400,000 children being raised by
  SSCs
• Lambda Legal 250,000 children being raised by
  SSCs According to recent data, there are
  roughly 250,000 children in the United States
  being raised by same-sex couples. But the rights
  of LGBT parents vary widely among states. About
  half of all states permit second-parent adoptions
  by the unmarried partner of an existing legal
  parent, while in a handful of states courts have
  ruled these adoptions not permissible under state
  laws.
• Source http//www.lambdalegal.org/our-work/issues
  /marriage-relationships-family/parenting/
  (071001)
• Number of Children Adoption by Same-Sex Partners
• 2000 Census 57,693 children being raised by
  unmd couples (11SSCs)
• Est. 6,500 children adopted by lesbigay couples
• BUT, Gayby boom since 2000! Probably tens of
  thousands now.
• Recent estimates 65,000 adopted cren in LG
  homes (probably inflated or confused).

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Gates, et al, UCLA Law School, Adoption and
Foster Care by Gay Lesbian Ps in the US
(Williams Insti Urban Insti, Mar 2007)
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Gates Adoption Foster Care Estimates (2007)

• Adoption
• An estimated 65,500 adopted children are living
  with a lesbian or gay parent.
• (No actual count est. 1.6 adoption rate by GL
  households est. GL adopt av. 1.3 cren est.
  4.1 of all adopted cren living in GL
  households.)
• More than 16,000 adopted children are living
  with lesbian and gay parents in California, the
  highest number among the states.
• Gay and lesbian parents are raising four percent
  (4) of all adopted children in the USA.
• Same-sex couples raising adopted children are
  older, more educated, and have more economic
  resources than other adoptive parents.
• An estimated two million GLB people are
  interested in adopting.
• More than one in three lesbians have given birth
  and one in six gay men have fathered or adopted a
  child.
• More than half of gay men and 41 percent of
  lesbians want to have a child.
• Foster Care
• An estimated 14,100 foster children are living
  with lesbian or gay parents.
• Gay and lesbian parents are raising three percent
  of foster children in the United States.
• A national ban on GLB foster care could cost from
  87 to 130 million.

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International Status of Adoption by Same-Sex
Partners (2007)

• Adoption by lesbian and gay partners and/or
  couples is reportedly allowed by law in at least
  some circumstances in at least ten Euopean
  nations (Andora, Belgium, Denmark, Germany,
  Iceland, the Netherlands, Norway, Spain, Sweden,
  and the United Kingdom).
• It is permitted in at least two other nations
  outside of Europe with European
  colonial/historical roots (Israel and South
  Africa).
• It is allowed in some parts of three other
  largely-European-settled nations (Australia,
  Canada, and the United States).
• The Hague Convention on Inter-Country Adoption
  leaves allowance/prohibition of trans-national
  adoption by gay and lesbian couples/partners to
  each country involved, but is intended to require
  full and honest disclosure. The Convention
  leaves recognition of such adoptions to each
  country. The US implementing legislation does
  not directly address the issue, the arguably may
  indirectly require recognition of international
  adoptions from other countries that have signed
  the Hague Convention on Inter-Country Adoption.

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Public Support for Adoption by Same-Sex Partners
in Europe

• 2003 European Omnibus Survey (ints / 15,000
  persons in 30 European nations)
• Majority favor SSP Adoption 4 nations
• Majority oppose SSP Adopt 26 nations
• 2006 Eurobarometer Poll (for EC)
• Majority favor SSP Adoption 2 nations
• Support for SSP Adopt lt33 18 ntns

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• Conclusions
• Be of Good cheer!!
• We live in the best of times despite the
  adversity and challenges.
• We have a great opportunity to stand for
  something.
• By becoming informed and by speaking up
  appropriately, courageously respectfully, and by
  refusing to be intimidated or coerced into
  silence we can make a huge difference.

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• THANK YOU!