The Need for Constitutional Protection For Marriage By Lynn D. Wardle Bruce C. Hafen Professor of Law J. Reuben Clark Law School, Brigham Young University* Presented at Nova Southeastern Law Center Debate on Amendment 2 - PowerPoint PPT Presentation

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The Need for Constitutional Protection For Marriage By Lynn D. Wardle Bruce C. Hafen Professor of Law J. Reuben Clark Law School, Brigham Young University* Presented at Nova Southeastern Law Center Debate on Amendment 2

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Title: The Need for Constitutional Protection For Marriage By Lynn D. Wardle Bruce C. Hafen Professor of Law J. Reuben Clark Law School, Brigham Young University* Presented at Nova Southeastern Law Center Debate on Amendment 2


1
The Need for Constitutional Protection For
MarriageBy Lynn D. WardleBruce C. Hafen
Professor of LawJ. Reuben Clark Law School,
Brigham Young University Presented at Nova
Southeastern Law Center Debate on Amendment 2
Same-Sex Marriage Sponsored by the Federalist
Society Monday , October 27, 2008, 1200 noon.
  Professional Views of Author not speaking
for any institution.
2
Audience Survey
  • How many believe that the state constitution
    should be amended to prohib SSM (support Amend
    2)?
  • Y____ N____ Un____

3
I. Introduction Perspective Context
  • A. Lest We Take Ourselves Too Seriously
  • gtgtgt

4
(No Transcript)
5
Mom to daughter l honestly don't know why its
taking you so long to get married!! By the time
I was your age, Id already been married twice."
6
Six Preliminary Points
  • 1) The issue is about Marriage!
  • Dont get distracted! its only about marriage!
  • 2) Advocates of same-sex marriage seek to change
    marriage, not marriage. Calling a same-sex union
    a marriage does not make it so.
  • 3) Protection of Marriage is a Civil Rights
    Cause.
  • 4) The claim for Same-Sex Marriage is Not a Claim
    for Tolerance
  • 5) All Relationships are NOT Equal .
  • 6) We did not choose, but cannot avoid, this
    battle.

7
Florida Proposed Amendment 2
  • Amendment 2 adds thirty-seven (37) simple words
    to the Florida Constitution
  • "Inasmuch as marriage is the legal union of only
    one man and one woman as husband and wife, no
    other legal union that is treated as marriage or
    the substantial equivalent thereof shall be valid
    or recognized."  (Fla. Secy State)
  • It does not change Florida marriage law.
  • It does provides constitutional protection for
    marriage to prevent judicial legalization or
    interstate recognition of same-sex marriage (see
    Goodrich, Marriage Cases, Kerrigan) in Florida.

8
TOP TEN MYTHS1) No NEED for Amend 2! Push to
legalize SSM.
  • Same-Sex Marriage Legal Six Nations and Three
    USA States The Netherlands, Belgium, Canada,
    Spain, South Africa, and Norway (2009) and 3 US
    states (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 subord
    jxns (Aus. Cap. Terr.) and some US (CA, CN, NH,
    NJ, OR, VT).
  • Same-Sex Unions Registry Some Benefits in Seven
    Nations and Five US states Argentina, Columbia,
    Croatia, Czech Rep., Hungary, Israel, Portugal
    subord jxns (South Aus, Tasmania, Victoria,
    recent Fed laws.) some US (AK, DC, HI, ME
    WA).

9
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/Partners
1985 0 0
1990 0 1
1995 0 3
2000 0 6 (1)
2005 3 (1) 13 (3)
2007 5 15 (6)
2008-Oct 6 (3) 15 (6)
Conclusions
10
2) It Cant Happen Here in FL?
  • Opponents of Amendment 2 would have you believe
    that it cant happen here in FL.
  • Just Ask the people of HI, AK, MA, CA, and now
    CN!!

11
Eleven Court Rulings Mandating Same-Sex Marriage
  • Hawaii Baehr v. Miicke, 196 WL 694235 (Haw.
    Cir. Ct. 1996), on 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 Castle v. State, 2004 WL 1985215, 11
    (Wash.Super. Sep 07, 2004), and
  • Andersen v. King County, 2004 WL 1738447 3,4,11
    (Wash. Super. 2004) revd 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 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 (October 16, 2008)

12
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).

13
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

14
3) Constitutional Protection for Marriage is
Radical and Marginal and Rare!
  • Protection of Marriage Family is the 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
    State.

15
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
    Rights
  • 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
    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

16
Most national constitutions adopted in the past
60 years also have included express
constitutional protection for marriage and/or
family.
17
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

18
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)

19
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,

20
4) It is Un-American!
  • Same-Sex Marriage is explicitly prohibited by
    written law in 45 states (all states except
    Connecticut, Massachusetts, New Jersey, New
    Mexico, and Rhode Island).

21
Most States Have Adopted Constitutional
Amendments Protecting Conjugal Marriage (SMAs)
3 More States Pending Votes on SMAs
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

22
Three Types of SMAs
  • Eight SMAs Protect Status of Marriage
  • AK, 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)
  •  
  • Eighteen SMAs Protect Substance of Marriage
    (Forbid Giving Equivalent Substance to DPs or
    CUs)
  • AL, AR, 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)
  • FLORIDAS AMENDMENT 2 Will be in this category
  • One SMA Protects Government Structure
    (Legislature Can Ban SSM)
  • HI
  • The Legislature shall have the power to reserve
    marriage to opposite-sex couples. Haw. Const.,
    Art. I, sec. 23 (1998)

23
VOTER SUPPORT FOR STATE MARRIAGE AMENDMENTS
  • The average vote in favor of state marriages
    amendments in all of the states combined is
    nearly 69.
  •  
  • The popular support in the state votes has
    ranged from a low of 57 in favor (OR) to 84 in
    favor (MS).
  • In only one state (AZ) have voters considered and
    rejected a SMA.
  • (2008 second chance correct the mistake.)

24
5 Only Redneck States Support SMAs!
25
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26
6) It Threatens Minorities!
  • Minorities strongly support constitutional
    protection of conjugal marriage
  • As the Reverend Walter Fauntroy, who marched and
    worked with the Rev. Martin Luther King, put it
    I am one of gay rights strongest advocates . .
    . but . . . its a serious mistake to redefine
    marriage as anything other than an institution
    between a man and a woman.
  • As a group of African-American pastors in Georgia
    declared
  • As our respected fallen leader, Dr. King once
    said, I have a dream, that my four children will
    one day live in a country where they will not be
    judged by the color of their skin but by the
    content of their character. This is a character
    issue where we cannot tolerate compromise.

27
Samples of Voter Support for SMAs
  • State Year All Afr-Am Dem
  • GA 2004 75 80 64
  • MI 2004 59 59 45
  • OH 2004 62 61 44
  • OK 2004 76 74 67
  • TN 2006 81 86 72
  • VA 2006 57 56 32
  • AZ 2006 49 61 25

28
7) Equal Rights (Loving) Supporters Oppose SMAs!
  • Racial Equality is Different!!!
  • 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.
  • Loving struck down an attempt by racial
    eugenicists to capture marriage (by redefining
    it) to promote their ideology and social agenda.
  • Similarly, same-sex marriage is an attempt by gay
    rights activists to capture marriage (by
    redefining marrige) to promote their ideology and
    social agenda.

29
8) Gender Equality Supporters Opposes SMAs!
  • Justice Ruth Bader Ginsburg wrote in a famous
    decision Physical differences between men and
    women. . . 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)

30
9) Whats the Harm of Legalizing Same-Sex
Marriage? No Harm!!
  • 1) Switch Burden of Proof (is on those
    proposing radical alteration of global norm)
  • 2) Assumes immediate, visible harm (comparable
    to divorce children or smoking)
  • 3) Diverts attention from transformative effect
    on marriage of inclusion of gay-lesbian
    lifestyles.  
  • 4) Already some harms evident.
  • Compare to other radical structural redefinition
    of marriage
  • -Fa-Dau marriage? Polyamory? Polygamy? Teen
    Marriages?
  • Would these affect you? Your family? Society?

31
Response to No Harm
  •  
  • Distinguish Public from Private Interests in
    marriage.
  •  
  • When marriages fail or fail to form, society must
    pick up the pieces and the public incurs huge
    fiscal and social costs.
  •  
  • How marriage is defined sends signals to and
    reflects common understandings about the
    expectations of the relationship.
  •  
  • Men and women are different, and the union of a
    man and woman still creates a different kind of
    union that the union of 2 men or 2 women. RB
    Ginsburg -
  •  
  • Marriage establishes the moral core of the family
    and the moral baseline and standards for society
    in many ways. Marriage is a society's cultural
    infrastructure . . . .
  •  

32
Surveys of 50,000 adults in 35 nations
  • 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.

33
  • Threats to Civil Rights Already Manifest
  • MA Boston Catholic Charities forced to shut
    down adoption services.
  • CA SCT decision Catholic doctor legally liable
    (if facts) because declined ART services to a
    lesbian no religious exemption
  • Suit involving CDC counselor for referral
    (homophobic)
  • -Georgetown University club Yeshiva Univ.
    married student housing
  • 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.
    (Middle-school Cross-dressing day, 1st Grade
    field trip to see teachers SF lesbian wedding,
    MA Parker, etc.)
  • - 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 (African-American administrator
    at college in OH).
  • - Ireland, ICCL warned that Catholic Bishops and
    clergy of hate speech

34
Violation of Civil Rights
  • Hyatt Hotel in San Diego boycott to punish
  • - AALS partially supports the boycott
  • San Francisco Board of Supervisors Resolution
    against Catholic Adoption Policy
  • San Francisco BS Resolution against Evangelical
    youth organization
  • New Mexico Photographers forced into court,
    ordered to pay nearly 7,000 in attorneys fees
    for not photographing same-sex commitment
    ceremony
  • Judges/Magistrates/Registrars punished, forced to
    resign

35
10) Just Open Up Marriage, More
Inclusive?Transform understanding expectations
of marriage.
  • Its not marriage. Including same-sex couples
    will transform marriage.
  • For example, a study by Dutch AIDs researchers,
    published in 2003 in the journal AIDS, reported
    on the number of partners among Amsterdams
    homosexual population. They found
  • - 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.
  • American researchers Bell and Weinberg reported
    that 43 percent of white male homosexuals had sex
    with 500 or more partners, with 28 percent having
    one thousand or more sex partners.  A recent
    study of 2,583 older sexually active gay men
    modal range for number of sexual partners ever .
    . . was 101-500,
  • Kirk and Madsen reported in their that the
    cheating ratio of married gay males, given
    enough time, approaches 100. . . .

36
Available at the BYU Bookstore at
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em0761843160store439.Also available from the
publisher at http//www.univpress.com/Catalog/Sing
leBook.shtml?commandSearchdbDB/CATALOG.dbeqSK
Udata0761843167
37
  • We must speak up and stand up
  • Hurrican Katrina 2006
  • BYU Physicial Sciences textbook being printed as
    storm hit New Orleans warned that levees in New
    Orleans a disaster waiting to happen.
  • It did, that time. Over 1800 killed and billions
    in property loss.
  • Same-sex marriage is another deadly storm
    approaching.
  • We have a duty to warn .

38
THANK YOU!!
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