Whats the Harm Changes and Challenges in Family Law Lesson

1
Whats the Harm? Changes and Challenges in
Family LawLesson 4 The Future for Families
Working Effectively to Make the World Better for
Families   by Lynn D. Wardle Bruce C. Hafen
Professor of Law J. Reuben Clark Law School,
Brigham Young University Presented at BYU
Education Week, August 21, 2009
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Welcome

• Thanks for coming (back) (How many 3d, 2d, 1st)
• Thanks to BYU Education Week for allowing this
  class
• Thanks to the room hosts!
• (Recommend Elder Packers keynote Devotional
  Address yesterday, 8/18, defend your families)
• Leave 5-10 mins Qs
• Resources
• 1) Marriage Family Law Research Project website
  
• http//www.law2.byu.edu/organizations/marriage_fam
  ily/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) BYU Bookstore -
  Y
• Same-Sex Marriage A Debate (Praeger 2003) BYU
  Bookstore N, try Amazon.com

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Some Recent Good news -

• ME Poll (where 100,000 signatures collected,
  only 55,087 needed for peoples veto ballot)
  Poll in April 49.5 opposed SSM 47.3 supported
  SSM.
• Source Peter Cassels, Religious Groups play
  major role . (8/18/09_)
• NH Poll New Hampshire's legislature may have
  passed a "gay marriage" bill that the governor
  signed into law, but that hasn't translated into
  statewide support, a new poll says.
• The poll shows that by a margin of 49-41
  percent, New Hampshire likely voters disapprove
  of the law that made the state the sixth
  nationwide to legalize "marriage" for homosexual
  couples. Ten percent are undecided. The
• poll was conducted by Research 2000 for the
  liberal blog DailyKos.com, a fact that
  conservatives say only adds to the poll result's
  validity.
• . . . In the poll, 18- to 29-year-olds
  supported the law by a margin of 53-39 percent,
  while 30- to 44-year-olds opposed it, 53-38
  percent. That latter demographic, in fact, had
  the highest opposition -- higher even than the
  60-plus category (50 percent opposed, 40 percent
  supportive).
• Source Michael Foust / Baptist Press (7/21/09)

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Good News polls, contd

• IA The poll found 61 percent of Iowans would
  vote for a constitutional limit to prohibit
  same-sex marriage. It found 80 percent of
  Republicans and 58 percent of independents
  support an amendment. Democrats were split 47
  percent for an amendment and 47 percent against
  it.
• Source James Q. Lynch, Poll finds resistance
  to gay marriage (8/18/09)
• In Iowa, a survey of 500 registered voters
  showed that 67 percent favor of placing a
  constitutional amendment on the ballot that would
  prohibit "gay marriage. Source Michael Foust /
  Baptist Press (7/21/09)
• CA Equality California (and other gay groups)
  will not support amendment to allow SSM in 2009
  But if you look at the poll numbers since
  November, they really havent moved at all.
  (Marc Solomon of EC). Source Jesse McKinley,
  Backers of Gay Marriage , NYT 7/27/09)
• In fact, most public polling shows that support
  for homosexual marriage has peaked and retreated
  significantly from its high water mark.
  (Statement of Ron Prentice, Executive Director,
  ProtectMarriage.com on Equality California
  Decision to Pursue a 2012 Election Repeal of
  Proposition 8, Aug. 12, 2009)
• US According to a recent CBS/New York Times
  poll, support for gay marriage has dropped nine
  percentage points from a 42 percent historic
  high. According to Gallup, only 13 percent of
  Americans believe that gay marriage would make us
  better off, while 48 percent believe it would be
  change for the worse. Source KJ Lopez, Winds
  Shifting (8/1/09 Op-Ed)
• POLAND Three quarters of people in Poland are
  against allowing homosexual couples to wed,
  according to a poll by GfK Polonia. 75 per cent
  of respondents oppose the legalization of
  same-sex marriage, while 87 per cent reject
  allowing same-sex couples to adopt children.
  Angus Reid, Global Monitor (8/5/09)

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Lecture 4 The Future for Families Working
Effectively to Make the World Better for Families
 (Aug. 21, 2009)

• Outline
• Review/finish threats to civil rights from SSM
• Six top family issues in 2009-10 (includes
  export/import)
• What can be done? (President Hinckley Standing
  for
• Something!)
• How to do it Stand up, speak up, civic
  involvement
• patience, charity, courage.
• E. Why we must do it (for ourselves, families,
  communities, nation, opponents,).
• Examples HI AK 1998, CA 2008, MA parents,
  VT/NV - one vote 2009
• F. Get Anxiously Engaged and Actively
  Involved

6
Recent Letter to IA Legislators from Religious
Liberty Experts

• Legalizing SSM w/o express accommodation will
  cause a sea change in American law and
  diminution of protection for religions and
  persons of faith
• Two categories of threats
• Under anti-discrimination statutes and
  doctrines (housing, publica accommodation, small
  businesses, religious summer camps, church
  employees, etc.)
• As unlawful discriminators and face penalties
  (denied eligibility for public contracts, access
  to public lands and facilities, licenses
  (professional, business, food, serrvice,
  accreditation, tax exempt status, etc.)
• Source Letter to Hon. Chet Culver (Gov. IA) from
  Prof. Robin Fretwell Wilson, et al., July 9,
  2009 also Same-Sex Marriage and Religious
  Liberty (2008).

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Other examples of losses of civil liberties
(from LDW article for ISFL Conference in Israel

• Intolerant anti-religious responses to
  conflicting loyalties (God and State) re
  marriage.
• UK - Sir Iqbal Sacranie, Gen. Secy Muslim
  Council of Britain investigated because said in
  interview gays could change with therapy (2006).
• -Catholic school forced to retain principal who
  openly celebrated SSCU.
• -Anglican bishop fined for refusing to hire
  openly gay youth minister.
• -New Rules (eff. 2010) forbid churches fire/not
  hire employees (except clergy) because of sexual
  practices.
• -Registrars who object to performing SSCUs
  pressured one forced to resign another
  harassed, demoted (sued but lost, no religious
  exemption).
• -Pediatrician on adoption panel request to
  abstain from SSC/P adoptions denied fired.
• SWEDEN - Pastor Ake Green prosecuted, convicted
  (SCt finally reversed) because quoted scriptures
  against homosexual behavior (prosecutor argued
  that other versions of the scriptures were
  available).
• -New SSM law requires churches (at least some)
  to provide clergy to perform SSM ceremonies.
• IRE - ICCL warned RC bishops risk prosecution
  for hate speech for Vatican pamphlet against
  homsexual relations.
• Source Lynn D. Wardle, Marriage and Religious
  Liberty Comparative Law Problems and Conflict of
  Laws Solutions, ISFL Regional Conference,
  Israel, June 7-9, 2009.
• gtcontd

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Loss Civil Liberties re Marriage, contd

• CAN - BC denied teacher accreditation to
  Evangelical Free Church of Canada
• - BCHRC held Knights Columbus liable for
  cancelling hall rental when learned for SS
  ceremony
• -Ont HRTrib gets complaint v. RC diocense for
  240,000 atty fees for dismissing altar-server
  who was cohabiting w/ SS partner
• US-MA 12 JPs resign bec told must solemnize SSM
  as well as trad marr
• A recent poll of Massachusetts residents
  revealed that 36 percent of voters who oppose
  gay marriage agreed with the statement, "If you
  speak out against gay marriage in Massachusetts
  you really have to watch your back because some
  people may try to hurt you.
• Source Mark Calli, Is the Gay Marriage Debate
  Over, Christianity Today, 24 July 2009, citing
  http//www.nationformarriage.org/site/c.omL2KeN0Lz
  H/b.5075687/apps/s/content.asp?ct7000219 .
• CA 24/112 dep cnty clrks in SD asked for
  exemption (told would be reassigned other jobs 18
  w/drew applications)
• -Alameda county granted deputy county clerks
  (dcc) exemption if note from pastor
• -Kern county stopped performing all marriages
• -LA county required all employees (DCCs) to
  perform SSMs
• -LA Times 23 CA counties allowed DCCs
  accommodate, but 35 counties did not.
• -North Coast Care Med. Group v. S.C., 139 P.3d 1
  (CA 2008) no exemption for Dr. decline AI lesbian
  couple because religion, but (then) OK deny if
  not md.
• -After Prop 8 passed, harassment, intimidation,
  stalking, vandalism, violence, discrimination
  against persons, businesses, churches that
  supported Prop 8.
• CN JPs can refuse to do any marriage (own
  discretion) but not town clerks.
• VT JPs can refuse to do any marriage but
  pattern/per se refusal prob illegal
• IA After Varnum Pub H Dept sent ltr all 99
  county recorders MUST do SSM
• NM HRC - Christian photographers liable for not
  photo SS cere 6,600 fees
• Source Lynn D. Wardle, Marriage and Religious
  Liberty . . . .

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B. Six top family issues in 2009-10

• Full Faith Credit cases DOMA repeal
• 2) Intimidation, harassment, persecution
  abuse of power to promote the ssm agend
• SSM Gay Adoption spread (eroding culture)
• Continuing quick-fix, first-resort divorce
• Continuing increase cohabitation cbow.
• November 2010 Election!!

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1) Exporting Importing SSM, CU, and LGAds
Conflicts of Laws (choice of law, and
judgment-recognition) Issues

• What happens when a same-sex couple that married
  in Massachusetts moves to a state that only
  recognizes civil unions, or that forbids both SSM
  and SSCUs (like UT)?
• Such conflicts over importation and exportation
  of controversial domestic relationships (called
  conflict of laws) will dominate future legal
  arguments about same-sex marriage.

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State Appellate or Federal Court Decisions
Involving Conflicts of Laws Re Same-Sex
Domestic Relationships, 2000 - 2007

• From Jan 2000 to April 2008, 22 federal/state
  conflicts decisions re recognition of
  SSM/CU/Adopt.
• Ten denied recognition.
• Nine allowed recognition.
• Three split.
• Rate of case occurrence is increasing each
  year!

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General US federal and state rules re
recognition of marriages from other jurisdictions

• General Rule Marriage valid where performed
  (S-1), valid everywhere (S-2) unless it
  violates the strong public policy of S-2.
•  
• Whether a sister state law violates strong public
  policy depends on whether it can overcome the
  presumption in favor of comity (courtesy/respect)
  to laws of other sovereign public policy
  exception is narrowly construed.
•  
• However, priority for forum policies (lex fori)
  is a countervailing consideration.
•  
• Subjective, ambiguous standards give courts much
  wiggle room.
•  
• Importance of SMAs to cabin judicial manipulation
  of comity to force recognition.
•  
• Importance of federal DOMA (protects right of
  states to decide for themselves neutral
  prevents federal substantive law/ choice of law
  to impose SSM on states ).

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DOMA

• Section 2 State Recognition
• 28 U.S.C. ? 1738C.
• "No State, territory, or possession of the
  United States, or Indian tribe, shall be required
  to give effect to any public act, record, or
  judicial proceeding of any other State,
  territory, possession, or tribe respecting a
  relationship between persons of the same sex that
  is treated as a marriage under the laws of such
  other State, territory, possession, or tribe, or
  a right or claim arising from such
  relationship.".
• Section 3 Federal
• 1 USCA ? 7. Definition of 'marriage' and
  'spouse'
• "In determining the meaning of any Act of
  Congress, or of any ruling, regulation, or
  interpretation of the various administrative
  bureaus and agencies of the United States, the
  word 'marriage' means only a legal union between
  one man and one woman as husband and wife, and
  the word 'spouse' refers only to a person of the
  opposite sex who is a husband or a wife.".

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President Congress (DEM) Intend to Repeal DOMA

• 3 pending suits v. DOMA (2 in MA, 1 in CA)
• -President Obamas DOJ is defending DOMA.
• -DOJ memorandum filed defending DOMA in one suit
  was criticized by gays who think President is
  breaking his promise to them by defending DOMA.
• -So latest DOJ memo said we think DOMA is
  discriminatory and violation of equality, but
  court should uphold it anyway.
• On Monday, Obama said he still wants to ditch
  the Defense of Marriage Act, calling the law
  discriminatory even as his administration
  defended it in court papers. (Source Nicole C.
  Brambila, State resolution urging marriage
  equality 8/18/09)
• President Obama is sabotaging DOMA while
  pretending to defend it in court . (Maggie
  Gallagher, No Justice for Marriage, 8/19/09)

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• C) Whats the Solution? What can I do? 5 Ideas
• 1st) Constitutional protection for conjugal
  marriage and the marital family (start with state
  constitutions)
• Three serious reasons why no US Constitutional
  protection for marriage and family.
• Context of the Founding Era (not an issue)
• Structure (federalism in family law)
• Difficulty (amendment process)
• Three weak reasons why no state constitutional
  amendments in 23 states.
• Politics
• Anti-populist processes
• Lack of citizen interest/initiative
• To do Organize and work for SMAs (and later FMA)
  

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• Whats the Solution? What to do?
• 2d) Explicit Statutory Protections for Rights of
  Religious Conscience, and for parents rights.
• Constitutional Protects of Freedom of Religion
  Have been judicially interpreted to very little
  protection.
• Statutory protections can provide a baseline.
• Cover SSM and Adoption by SSC/Ps
• To do Organize and work for statutory
  protection of rights of conscience

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Statutory Protection of Rights, contd

• Robin Fretwell Wilson et al proposal
• No individual, no religious or denominations
  organization, and no charitable or educational
  organization which is operated, supervised, or
  controlled by or connected with a religious
  organization, shall be liable, penalized, or
  denied benefits under the laws of this state,
  including but not limited to laws regarding
  employment discrimination, housing, public
  accommodations, licensing, government contracts
  or grants, or tax-exempt status, for refusing to
  provide services, accommodations, advantages,
  facilities, goods, or privileges related to the
  solemnization of any marriage, for refusing to
  solemnize any marriage, or for refusing to treat
  as valid any marriage, if such providing,
  solemnizing, or treating as valid would cause
  such individuals or organizations to violate
  their sincerely held religious beliefs, provided
  that
• a refusal to provide services, accommodations,
  advantages, facilities, goods, or privileges
  related to the solemnization of any marriage
  shall not be protected under this section where
  (i) a party to the marriage is unable to obtain
  any similar services, accommodations, advantages,
  facilities, goods, or privileges elsewhere, and
  (ii) such inability to obtainn similar services,
  accommodations, advantages, facilities, goods, or
  privileges elsewhere constitutes a substantial
  hardship and
• no government employee may refuse to assist in
  the solemnization of any marriage under this
  section if another government employee is not
  available and willing to do so.

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• Whats the Solution? What to do?
• 3rd) Get Informed
• Some potential source
• Alliance Defense Fund Defend the Family
• DefendMarriage.org (UFI) Doha Intl Institute
  for Family
• Studies Development
• DOMAWatch.org (ADF) Family Resource Council
• Focus on the Family Heritage Foundation
• Institute for Marriage Public Policy National
  Organization for Marriage
• ProtectMarriage.com Ruth Institute
• Whatstheharm.org Others? (your suggestions)
• Organize and read to get informed and share
  information with others of similar values

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• Whats the Solution? What to do?
• 4th) Let your voice be heard respectfully and
  regularly
• Write letters (emails) and leave phone for to
  government officials (President, Senator,
  Congressman, Governor, state senator, state
  representative, county officials, mayor, city
  council representative, and keep writing
  regularly.
• Write letters to the editor of you newspapers, TV
  radio stations re their policies, positions,
  editorials, news coverage.
• Discuss the issues appropriately with neighbors,
  friends, family, class-mates, co-workers, etc.
• At meetings of candidates (precinct meetings,
  caucuses) ask questions about their policies and
  votes.
• Organize and work to get fair information
  disseminated

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• Whats the Solution? What to do?
• 5th) Support, recruit, provide good candidates
• Attend meetings of candidates (precinct meetings,
  caucuses) and ask candidates questions about
  their policies and votes.
• Recruit good persons to be candidates when none
  are running
• Be willing to help good candidates with some of
  your time and
• Consider becoming a candidate for appropriate
  positions
• Organize and work to get fair information
  disseminated

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D. How to do it?

• Do it with patience, charity, courage.
• If we get angry, we have lost the battle.
• Speak with a public voice addressing public
  interests/ morality not private
  morality/interests

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Be Anxiously Engaged

• DC 5826-29
• 26 For behold, it is not meet that I should
  command in all things for he that is compelled
  in all things, the same is a slothful and not a
  wise servant wherefore he receiveth no reward.
• 27 Verily I say, men should be anxiously engaged
  in a good cause, and do many things of their own
  free will, and bring to pass much righteousness
• 28 For the power is in them, wherein they are
  agents unto themselves. And inasmuch as men do
  good they shall in nowise lose their reward.
• 29 But he that doeth not anything until he is
  commanded, and receiveth a commandment with
  doubtful heart, and keepeth it with slothfulness,
  the same is damned.
• Alma 3734
• 34 Teach them to never be weary of good works,
  but to be meek and lowly in heart for such shall
  find rest to their souls.
• DC 633-34, 36
• 33 Fear not to do good, my sons, for whatsoever
  ye sow, that shall ye also reap therefore, if ye
  sow good ye shall also reap good for your reward.
• 34 Therefore, fear not, little flock do good
  let earth and hell combine against you, for if ye
  are built upon my rock, they cannot prevail.

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Be Anxiously Engaged, contd

• Alma 6010-11
• 10 And now, my beloved brethren--for ye ought to
  be beloved yea, and ye ought to have stirred
  yourselves more diligently for the welfare and
  the freedom of this people but behold, ye have
  neglected them insomuch that the blood of
  thousands shall come upon your heads for
  vengeance yea, for known unto God were all their
  cries, and all their sufferings--
• 11 Behold, could ye suppose that ye could sit
  upon your thrones, and because of the exceeding
  goodness of God ye could do nothing and he would
  deliver you? Behold, if ye have supposed this ye
  have supposed in vain.
• Matthew 513-16 (compare 3 Nephi 1213-16
  Verily, verily, I say unto you, I give unto you
  to be . . .)
• 13 Ye are the salt of the earth but if the
  salt have lost his savour, wherewith shall it be
  salted? it is thenceforth good for nothing, but
  to be cast out, and to be trodden under foot of
  men.
• 14 Ye are the light of the world. A city that is
  set on an hill cannot be hid.
• 15 Neither do men light a candle, and put it
  under a bushel, but on a candlestick and it
  giveth light unto all that are in the house.
• 16 Let your light so shine before men, that they
  may see your good works, and glorify your Father
  which is in heaven.

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A. Dean Byrd, Ph.D. Foster A Culture of
Humility

• To have a culture of humility you must
  deliberately cultivate respect for expression of
  differing points of view.
• 1) Know what your own worldview is.
• 2) Be open to understanding the worldview of
  others be willing to listen to and to describe
  back others worldviews, not necessarily to agree
  with them, but to understand.
• Value diversity. You cannot have diversity in a
  group if you do not have and allow for the
  expression of different world views.
• Recognize that our similarities stabilize us,
  our differences enrich us.
• Begin all discussions of controversial topics by
  first finding what you agree on. Then move on to
  explore and explain different perspectives and
  positions.

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WHY do it?

• -One of our responsibilities as parents,
  citizens, and especially scholars is to warn of
  dangers
• My experience at book camp, Ft. Knox, KY 1970
  stand and other will also
• - Elie Wiesel, Night Moishe the Beadle
• Elie Wiesel, Nobel Acceptance Speech I swore
  never to be silent . . . . We must take sides.
  Neutrality helps the oppressor, never the victim.
  Silence encourages the tormentor . . . . We
  too must speak up and get involved.
• - President Gordon B. Hinckley, 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.

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• -Elie Wiesel
• There is so much to be done, there is so much
  that can be done. One person a Raoul
  Wallenberg, an Albert Schweitzer, a Martin Luther
  King, Jr. one person of integrity can make a
  difference, a different of life and death.
• -President Gordon B, Hinckley wrote
• 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.
• 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.

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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.
• Thanks for coming!

28
Humor
29
Extras
30
I. Summary of (/191) States (/50) w/ SSM/CUs
A. LEGALIZED

• 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)
•  

Global (US) Progress of Same-Sex Marriage, and
Marriage Equivalent Civil Unions or Partnerships,
1985-2009
31
B. U.S. States Nations Prohibiting 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)
• Thirty-seven (37) of 191 Sovereign Nations (19)
  Have Constitutional Provisions Declaring Marriage
  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). (E.g., 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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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.

33
(No Transcript)
34
Ten 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.
  State,
• 2004 WL 1985215, 11 (Wash.Super. Sep 07, 2004),
  revd 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 ,
  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).

35
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).

36
Eleven Constitutional Doctrines Invoked to
Mandate Same-Sex Marriage or Unions Eleven
Constitutional Doctrines Invoked to Mandate
Same-Sex Marriage, Strike SMAs and DOMAs, etc.
37
Eleven Constitutional Doctrines Invoked to
Mandate Same-Sex Marriage or Unions

• -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

38
Resources