What’s the Harm? Does Legalizing
Same-Sex Marriage Really Harm
Individuals, Families or Society?
By Lynn D. Wardle
Bruce C. Hafen Professor of Law
J. Reuben Clark Law School, Brigham Young University
Presented to the Sacramento LDS Business Association
and J. Reuben Clark Law Society
at Arden Hills Country Club, Sacramento, CA
Friday, October 10, 2008
Six Preliminary Points
1) Thank You. Thank You! THANK YOU!!
2) The issue is about Marriage!
Don’t get distracted; it’s not about gays or
same-sex etiology etc., its about marriage!
3) Advocates of same-sex marriage seek to change
marriage, not marriage. Calling a same-sex union a
marriage does not make it so.
4) Protection of Marriage is a Civil Rights Cause.
5) The claim for Same-Sex Marriage is Not a Claim
for Tolerance
6) We didn’t choose, but cannot avoid, this battle.
Standing for Something
 - 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.

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.
Proposition 8
Proposition 8 adds fourteen words to the Constitution
of California:
“Only marriage between a man and a woman is
recognized in California.”
The language is identical to the language of statue
enacted by over 60% of the popular vote as Proposition
22 in 2000 (& codified at Family Code § 308.5).
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*).
Ten 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), rev’d by constitutional amendment (1998).
Alaska: Brause v. Bureau of Vital Statistics, No. 3AN-95-6562, 1998 WL 88743 at 6 (Alaska. Super. Ct., Feb. 27,
1998) reversed by constitutional amendment (1998).
Massachusetts: Goodridge v. Department of Public Health, 798 N.E.2d 941, 943, 959 Mass. 2003); In re Opinion
of the Justices to the Senate, 802 N.E.2d 565, 569-71 (Mass. 2004).
Oregon: Li v. State, 2004 WL 1258167 (Or. Cir. April 20, 2004), rev’d, 110 P.3d 91 (Ore. 2005).
Washington: 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) rev’d 138 P.3d963 (Wn. 2006).
Maryland: Deane v. Conway, Case No. 24-C-04-005390 (Cir. Crt. Balt. City, Md. Jan. 20, 2006), available at
http://www.baltocts.state.md.us/civil/highlighted_trials/Memorandum.pdf , rev’d Conaway v. Deane 932 A.2d
571 (Md. 2007).
New York: Hernandez v. Robles, 794 N.Y.S.2d 579 (N.Y.Sup., Feb. 4, 2005) rev’d 855 N.E.2d 1 (N.Y. 2006).
California:In re Coordination Proceeding, Special Title [Rule 1550(c)] Marriage Cases, No. 4365, 2005 WL
583129 (Cal. Super. Crt. San. Fran., Mar. 14, 2005),
aff’d In re Marriage Cases, 183 P.3d 384 (Calif. 2008).
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
States That Have Adopted Constitutional Amendments Protecting Conjugal
Marriage and States with Pending Votes on Marriage Amendments
27 States with marriage
amendments:
Alaska
Alabama
Arkansas
Colorado
Georgia
Hawaii
Idaho
Kentucky
Kansas
Louisiana
Michigan
Mississippi
Missouri
Minnesota
Nebraska
Nevada
North Dakota
Ohio
Oklahoma
Oregon
South Carolina
South Dakota
Tennessee
Texas
Utah
Virginia
Wisconsin
3 States with pending
votes (Nov. 2008):
Arizona
California
Florida
VOTER SUPPORT FOR STATE MARRIAGE
AMENDMENTS
The average vote in favor of state marriages amendments in all of
the states combined is 69%.
The popular support in the state votes has ranged from a low of
57% in favor (OR) to 84% in favor (MS).
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)
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)
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 1948, recognizes that “[t]he
family is the natural and fundamental group unit of society and is entitled to
protection by society and the State.”
33 International Treaties, Charters, Conventions and other Legal Documents
with Provisions Concerning Marriage and/or Families
(Research originally compiled by Scott Borrowman, J.D., 2005)
Convention on the Prevention and
American Convention on Human
Punishment of the Crime of Genocide Rights
Convention relating to the Status of American Declaration of the Rights
Refugees
and Duties of Man
Supplementary Convention on the
Conference on Security and CoAbolition of Slavery, the Slave Trade, operation in Europe, Final Act
and Institutions and Practices Similar (Helsinki Accord)
to Slavery
African Charter on Human and
International Convention on the
People’s Rights (Banjul Charter)
Elimination of all Forms of Racial
African Charter on the Rights and
Discrimination
Welfare of the Child
Convention on Consent to Marriage, Protocol to the African Charter on
Minimum Age for Marriage and
Human and Peoples Rights on the
Registration of Marriages
Rights of Women in Africa
Recommendation on Consent to
Geneva Declaration of the Rights of
Marriage, Minimum Age for Marriage the Child of 1914
and Registration of Marriages
United Nations General Assembly
International Covenant on Civil and Universal Declaration of Human
Political Rights
Rights
International Covenant on Economic, Declaration of the Rights of the Child
Social and Cultural Rights
Proclamation of Teheran
Convention on the Elimination of All Declaration on Social Progress and
Forms of Discrimination against
Development
Women
Declaration on Social Progress and
Hague Convention on the Civil
Development
Aspects of International Child
Declaration on the Rights of Mentally
Abduction
Convention on the Rights of the Child Retarded Persons
Declaration on the Protection of
European Convention for the
Women and Children in Emergency
Protection of Human Rights and
and Armed Conflict
Fundamental Freedoms
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
See also Proposed American
Declaration on the Rights of
Indigenous Peoples
Most national constitutions adopted in the past 60 years
also have included express constitutional protection for
marriage and/or family.
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 *
Bulgaria *
Burkina-Faso *
Cambodia *
Cameroon
Canada *
Cape Verde
Central African Republic
Chad
Chile
China *
Columbia *
Congo *
Costa Rica *
Croatia *
Cuba *
Cyprus *
Czech Republic
Dominica
Dominican Republic
East Timor *
Ecuador *
Egypt
El Salvador *
Equatorial Guinea *
Eritrea *
Estonia
Ethiopia *
Fiji
Finland
Gabon *
Gambia
Georgia *
Germany *
Ghana
Greece *
Guatemala
Haiti *
Honduras *
Hungary *
Iceland
Indonesia
Iran
Iraq
Ireland *
Italy
Jamaica
Japan *
Kazakhstan *
Kosovo
Kyrgyzstan
Kuwait
Latvia *
Lesotho
Liberia
Libya *
Lichtenstein
Lithuania *
Luxembourg *
Macedonia *
Madagascar
Malawi *
Mali
Malta
Mauritania
Mexico
Moldova
Mongolia *
Montenegro *
Mozambique *
Namibia *
Nauru
Nicaragua *
Niger *
Nigeria *
North Korea *
Oman
Pakistan *
Panama *
Papua New Guinea
Paraguay *
Peru *
Philippines *
Poland *
Portugal *
Qatar
Romania *
Russian Federation
Rwanda *
Saint Lucia
Saint Vincent
Saudi Arabia
Senegal *
Serbia *
Sierra Leone
Slovakia *
Slovenia *
Somalia *
South Africa
South Korea *
Spain
Sri Lanka
Sudan *
Suriname *
Swaziland *
Sweden *
Switzerland *
Syria *
Tajikistan *
Thailand
Togo *
Trinidad and Tobago
Tunisia
Turkey
Turkmenistan *
Tuvalu
Uganda *
Ukraine *
United Arab Emirates
Uruguay *
Uzbekistan *
Venezuela *
Vietnam *
Yemen
Zambia
See also:
Chechnya
Hong Kong
Puerto Rico
Tibet
*= protects both marriage
& family
No * = protects family only
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)
Malawi (art. 22)
Moldova (art. 48)
Montenegro (art. 71)
Namibia (art. 14)
Nicaragua (art. 72)
Paraguay (arts. 49,51,52)
Peru (art. 5)
Poland (art. 18)
Serbia (art. 62)
Somalia (art. 2.7)
Suriname (art. 35)
Swaziland (art. 27)
Tajikistan (art. 33)
Turkmenistan (art. 25)
Uganda (art. 31)
Ukraine (art. 51)
Venezuela (art. 77)
Vietnam (art. 64)
See also Mongolia,
Romania, Hong Kong
Examples of Constitutional Texts:
Article 45 of the Cambodian Constitution: “(4) Marriage shall be conducted
according to conditions determined by law based on the principle of mutual
consent between one husband and one wife.”
Article 42 of the Constitution of Columbia: the family “is formed . . . by the free
decision of a man and woman to contract matrimony . . . .”
Article 24 of the Constitution of Japan: “Marriage shall be based only
on the mutual consent of both sexes and it shall be maintained through
mutual cooperation with the equal rights of husband and wife as a
basis.”
Article 110 of the Constitution of Latvia reads: “The State shall protect
and support marriage—a union between a man and a woman,…”
American Constitution Protection for Families
 Amendment III:
 “No soldier shall, in time of peace be quartered in
any house, without the consent of the Owner, nor in
time of war, but in a manner to be prescribed by
law.”
Samples of Voter Support for SMAs
 State
 GA
 MI
 OH
 OK
 TN
 VA
 AZ
Year
2004
2004
2004
2004
2006
2006
2006
% All
75%
59%
62%
76%
81%
57%
49%
% Afr-Am
80%
59%
61%
74%
86%
56%
61%
% Dem
64%
45%
44%
67%
72%
32%
25%
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 . . . [b]ut . . . it’s 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.”
Racial Equality does not require SSM
General Colin Powell described the difference between black civil rights claims
for equality and gay rights claims for equality. “Skin color is a benign, nonbehavioral characteristic; sexual orientation is perhaps the most profound of
human behavioral characteristics. Comparison of the two is a convenient but
invalid argument.”
Gender Equality does not require SSM
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)
Why the US has no Constitutional Protection for
Marriage
1) History - 1787
2) Federalism
3) Deliberately Difficult Amendment Process (only 16 amendments in past 217
years since the original Bill of Rights)
Three reasons why some (23) states have not adopted constitutional
amendments protecting marriage
1) History (it was not previously an issue, not an issue when the state constitution
was drafted)
2) Inertia (too much work and too much political cost to make the effort)
3) Intimidation (abuse of, attempt to silence those who oppose SSM)
What’s the Harm of Legalizing Same-Sex Marriage?
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 there are evident harms.
QUICK ANSWER: Compare to other radical redifinition of
marriage:
-polyamory
- marriage with 13-year-olds ala Tom Greene?
-Fa-Dau marriage? Bro-Sis marriage?
Response
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 . . . .”
David Blankenhorn, The Future of Marriage. Nations with SSM or SSCU less supportive of marriage/fams.
One classic effort to change marriage and marital family: Bolshevik Russia marriage and family law
reforms, 1917-1927.
Same-sex relationships differ in profound ways form
conjugal marriage
For example, a study by Dutch AIDs researchers, published in 2003 in the journal AIDS, reported on the
number of partners among Amsterdam’s homosexual population. They found:
- 86% of new HIV/AIDS infections in gay men were in men who had steady partners.
- Gay men with steady partners engage in more risky sexual behaviors than gays without steady
partners.
- Gay men with steady partners had 8 other sex partners (“casual partners”) per year, on average.
- The average duration of committed relationships among gay steady partners was 1.5 years.
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 reported that “the modal range for number of sexual
partners ever . . . was 101-500,” while 10.2 percent to 15.7 percent had between 501 and 1,000 partners,
and another 10.2 percent to 15.7 percent reported having had more than one thousand sexual partners
in their lifetime.
Kirk and Madsen reported in their that “the cheating ratio of ‘married’ gay males, given enough time,
approaches 100%. . . .”
Same-sex relationships differ in profound ways form
conjugal marriage
A 2006 Norwegian study found 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 for lesbian couples as it was for gay men couples.
In California:
Abortion cases
 CA SCT decision : Catholic doctor legally liable (if facts) because declined
ART services to a lesbian; no religious exemption
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 school 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
(African-American administrator at college in OH).
 Suit involving CDC counselor for referral (‘homophobic’)
 - Ireland, ICCL warned that Catholic Bishops and clergy of hate speech
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 samesex commitment ceremony
Judges/Magistrates/Registrars punished, forced to resign
Six Big Changes Since 2000 That Make Passage of
Proposition 8 More Difficult
First, the prevailing sentiment is for “change” and it is led by a very charismatic and
eloquent candidate for the U.S. Presidency who has openly expressed his opposition
to Prop. 8.
Second, there is hostility and punitive reaction against not just the arguments that
favor Prop. 8, but for the mere expression of views that support Prop. 8!
Third, the gay movement has increased in credibility, and influence.
Fourth, the California Supreme Court in May of this year decided In re Marriage
Cases.
Fifth, supporters of same-sex marriage have engaged in widespread misuse and abuse
of government authority to oppose Prop. 8.
Sixth, attempts to harass, abuse, and silence those who express views opposing samesex marriage have reached extraordinary levels (and, alone, are one strong reason to
vote for Proposition 8 – to repudidiate such anti-democratic conduct)
Why the In re Marriage Cases Decision Should be Overturned by Prop 8
The California Supreme Court made five types of very serious mistakes:
1) Structural – judicial legislation
2) Substantive – endanger the basic unit of society
3) Analytical - policy rhetoric and bald assumptions, not constitutional analysis
4) Political – manipulation endangering integrity and independence of judiciary
5) Pandering – embraced rather than rejected the capture of marriage like the
racial ant miscegenation movement
We must speak up and stand up
 One of our responsibilities as parents, citizens, and especially
scholars is to warn of dangers
 - 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.”

“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.”
Standing for Something
 -President Gordon B, Hinckley wrote:

“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.
Selected Partial Bibliography
(A few of many excellent resources that may be helpful in defending the fundamental institutions of conjugal
marriage and the marital family)

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The Divine Institution of Marriage (Salt Lake City, Aug. 13, 2008),
at www.newsroom.lds.org/ldsnewsroom/eng/commentary/the-divine-institution-ofmarriage
WHAT’S THE HARM (Lynn D. Wardle, ed., University Press of America 2008)
THE FUTURE OF MARRIAGE by David Blankenhorn (Encounter Books 2007)
SETTING THE RECORD STRAIGHT: MORMONS & HOMOSEXUALITY by A. Dean
Byrd, Ph.D., M.P.H. (Millenial Press Inc. 2008)
THE NATURAL FAMILY, A MANIFESTO by Allan C. Carlson & Paul T. Mero (Spence
Publishing 2007)
THE MEANING OF MARRIAGE (Robert P. George & Jean Bethke Elshtain eds., Spence
Publishing 2006)
POWER OVER THE BODY, EQUALITY IN THE FAMILY by Charles J. Reid Jr., (Wm. B.
Eerdmans Publishing 2004)
MARRIAGE AND SAME-SEX UNIONS, A DEBATE (Lynn D. Wardle, Mark Strasser,
William C. Duncan & David Orgon Coolidge, eds. Praeger
2003)
HOMOSEXUALITY AND THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS
by A. Dean Byrd, Ph.D. (Cedar Fort 2001)
THE CASE FOR MARRIAGE by Linda J. Waite and Maggie Gallagher (Doubleday 2000)
Available at the BYU Bookstore at
http://www.byubookstore.com/ePOS/form=item.html&item=0761843160&store=439.
Also available from the publisher at
http://www.univpress.com/Catalog/SingleBook.shtml?command=Search&db=^DB/CATALOG.db&eqSK
Udata=0761843167