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Title: How Legalizing SameSex Marriages Harms Individuals, Families and Society: Whats the Harm and Is Ther

How Legalizing Same-Sex Marriages Harms
Individuals, Families and Society Whats the
Harm and Is There Hope to Prevent It?
  • By Lynn D. Wardle
  • Bruce C. Hafen Professor of Law
  • J. Reuben Clark Law School, Brigham Young
  • 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 Wifes car
  • Sometimes in the morning I wake up grumpy, but
    usually I just let him sleep!

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New Yorker cartoon Mom to daughter l honestly
don't know what youre waiting for By the time I
was your age, Id been married and divorced
Some Preliminary Points
  • Thank you, Thank you, Thank You
  • The issue Is About Marriage!
  • Calling a same-sex union a marriage does not make
    it so.
  • 5) We didnt choose but cannot avoid this

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

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
  • Nearly 37 of all births were out of wedlock
  • Nearly 25 of all known pregnancies are aborted

  • 2) When Marriage and Marital Families
    Disintegrate, Society and Individuals Suffer,
    Struggle and Are Vulnerable.
  • Anthropologist David W. Murray
  • Legal 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
  • -- 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 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 law
    effective 2009

Global (US) Progress of Same-Sex Marriage, and
Marriage Equivalent Civil Unions or Partnerships,
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), revd 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), revd, 110 P.3d 91 (Ore. 2005).
  • Washington Andersen v. King County, 2004 WL
    1738447 3,4,11 (Wash. Super. 2004) and Castle v.
  • 2004 WL 1985215, 11 (Wash.Super. Sep 07, 2004),
    revd Andersen v. King County 138 P.3d963 (Wn.
  • Maryland Deane v. Conway, Case No.
    24-C-04-005390 (Cir. Crt. Balt. City, Md. Jan.
    20, 2006), available at http//www.baltocts.state. ,
    revd 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) revd Hernandez v.
    Robles 855 N.E.2d 1 (N.Y. 2006).
  • CaliforniaIn re Coordination Proceeding, Special
    Title Rule 1550(c) Marriage Cases, No. 4365,
    2005 WL 583129 (Cal. Super. Crt. San. Fran., Mar.
    14, 2005), affd 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 Liberty
  • 3 flaw with the sky didnt fall, so whats the
  • 1) It shifts the Burden of Proof
  • 2) It diverts attention from long-term harm
  • 3) Already some harms are documented
  • SSM changes the script of marriage
  • It changes marriage by the transformative power
    of inclusion

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
  • 2003 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
  • - Gay men with steady partners had 8 other sex
    partners (casual partners) per year, on
  • - The average duration of committed
    relationships among gay steady partners was 1.5

  • 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
  • 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
  • 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

  • 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
  • Those who oppose same-sex marriage will be simply
  • - Opposition to same-sex marriage be invidious
  • Soup kitchens, homeless shelters, hospitals,
    social services agencies hurt.
  • -In Massachusetts Boston Catholic Charities, had
    to shut down.
  • -Olive Branch adoption agency and in
  • -

  • 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
  • - Ireland, ICCL warned that Catholic Bishops and
    clergy of hate speech

Available at the BYU Bookstore at
em0761843160store439. Also available from the
publisher at http//
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
  • 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 the family is the
    natural and fundamental group unit of society and
    is entitled to protection by society and the

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
  • 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
  • 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
  • Protocol to the African Charter on Human and
    Peoples? Rights on the Rights of Women in Africa

145 Nations (/191) with Constitutional
Provisions on Family 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

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)

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 marriagea
    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
27 States with marriage amendments
3 States with pending votes (Nov. 2008)
  • Alaska
  • Alabama
  • Arkansas
  • Colorado
  • Georgia
  • Hawaii
  • Idaho
  • Kentucky
  • Kansas
  • Louisiana
  • Michigan
  • Mississippi
  • Missouri
  • Minnesota
  • Nebraska
  • Nevada
  • North Dakota
  • Arizona
  • California
  • Florida

  • 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).

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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
  • As President Hinckley wrote in Standing for
  • 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
  • One person of integrity can make a difference,
    a different of life and death.

  • John 1633 In the world ye shall have
    tribulation but be of good cheer I have
    overcome the world.
  • Acts 2720-25 Paul stood forth . . . and said .
    . .
  • I exhort you to be of good cheer for there
    shall be no lost of any mans 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 . . . .
  • DWherefore be of good cheer and do not fear,
    for I the Lord am with you and will stand by you
    (DC 686), and Iwill lead you along, (DC
    7818), and Let thy heart be of good cheer . . .
    Contend thou . . . morning and night and day
    after day let thy warning voice go forth . . ..
    (DC 1124-5)

May the Lord Bless You!! Thank You!!!
Available at the BYU Bookstore at
em0761843160store439. Also available from the
publisher at http//
(No Transcript)