Same-Sex Marriage and Religious
Liberty in the USA and Globally
by Lynn D. Wardle
Bruce C. Hafen Professor of Law
J. Reuben Clark Law School, BYU
Presented to the
Religious Freedom in a Secular World
CLE Conference sponsored by the
International Center for Law & Religion Studies
July 7, 2014
Changing Ideas About Marriage
SSM Humor
More SSM Humor
One Lawyer to another as they leave a
courtroom:
'I'm in favor of same-sex marriage. Same-sex
marriage will lead to same-sex divorce.'
More SSM Humor
More SSM Humor
More SSM Humor
More SSM Humor
More SSM Humor
More SSM Humor
The Legal Status of Same-Sex Marriage and Unions in the USA and the World
Lynn D. Wardle
3 July 2014
A. Legal Allowance of Same-Sex Unions in the USA in Twenty (20) of 50 states + DC
+ 8/564 Indian Tribes):
Same-Sex Marriage Legal in Twenty (20) USA States (+ many fed crt state SSM orders) (NCSL says 17 States)
Massachusetts (judicial decree 2004), Connecticut (judicial order 2008), Iowa (judicial order 2009), Vermont (2009), New
Hampshire (2010), New York (2011), Maine (ballot 2012), Maryland (ballot 2012), Washington (ballot 2012), Delaware (2013),
California (July 2013, judicial order not appealed), Minnesota (2013), Rhode Island (2013), New Jersey (judicial order 2013);
Hawaii (2013); New Mexico (state judicial order 2013); Illinois (law June 2014); Oregon (judicial decree June 2014), Pennsylvania
(judicial decree 2014), Indiana (judicial order 2014). – plus the District of Columbia (2010), +8 (of 566) U.S. Indian tribes - the
Coquille, Suquamish, Odawa Tribes, Santa Ysabel, and Pokagon Band of Potawatomi Tribe, Colville, Cheyenne and Arapaho Tribes
of Oklahoma, and Leech Lake Tribal Council.
Pending Litigation/Appeals: Challenges to laws barring SSM are pending in every state with such laws. See, e.g., Utah (2013 order,
stayed on appeal); Oklahoma (2014 order, stayed on appeal), Ohio (2014, stayed on appeal), Kentucky (2014, stayed on appeal),
Virginia (2014, stayed on appeal), Texas (2014, stayed on appeal), Michigan (March 2013), Idaho, Oregon, Pennsylvania,
Wisconsin, Arkansas, and Tennessee (injunction pending challenge to TN marriage law).
Same-Sex Civil Unions Equivalent to Marriage Legal in Three (3) Additional US States:
Oregon (2008), Nevada (2009), & Colorado (2013) (+ some states with SSM).
Same-Sex Unions Registry & Specific, Limited Benefits in One (1) Additional US Jurisdiction
Wisconsin. Some States with SSM or CU also allows limited benefit relations – HI (1997).
Soruces: NCSL, Same Sex Marriage Laws, http://www.ncsl.org/research/human-services/same-sex-marriage-laws.aspx (seen 3 July
2014); Defining Marriage: State Defense of Marriage Laws and Same-Sex Marriage, available at
http://www.ncsl.org/research/human-services/same-sex-marriage-overview.aspx (seen 3 July 2014).
B.
Legal Rejection of Same-Sex Unions in the USA:
Same-Sex Marriage Prohibited by State Constitutional Amendment (SMA) Adopted Voters in Thirty-one (31)
States (60%) (including CA - disregarded by court, and HI where amendment gave legislative control):
Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Hawaii,# Idaho, Kentucky, Kansas, Louisiana, Michigan,
Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South
Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin. (#ssm approved by legisla / const’l amend)
Same-Sex Civil Unions Equivalent to Marriage Prohibited by State Constitutional Amendment in Twenty (20)
USA States (40%):
Alabama, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Nebraska, North Carolina, North
Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and Wisconsin.
The total vote rejecting same-sex marriage in votes on the 31 state marriage amendments combined was over 61% (as
of November 2012).
Same-Sex Marriage Prohibited Without Constitutional Amendment (by statute or common law) in Thirteen
(13) Additional States.
SMA passed in May 2012 in NC (61%); SMA rejected for first time by voters in MN in 2012; initiatives or referenda
legalizing SSM approved by voters in ME, MD, and WA in 2012.). Voters have constitutionally banned SSM in 31 states
by adopting SMAs. (In AZ voters first rejected SMA in 2006 then approved SMA in 2008; in ME voters first rejected SSM
in 2009 then approved in 2012). In 17 of the 26 “blue states” that voted for Obama in 2012 only male-female marriage
was then legal: Hawaii, California, Oregon, Nevada, Colorado, New Mexico, Minnesota, Wisconsin, Illinois, Michigan,
Ohio, Pennsylvania, Rhode Island, New Jersey, Delaware, Virginia, and Florida. Bill to legalize SSM in IL fails 130530. In
2008 voters in California passed Prop 8 a constitutional amendment barring SSM but it was ruled unconstitutional in a
dubious by a federal district court opinion. State officials refused to appeal and the Supreme Court of the United States
ruled that the sponsors of Prop 8 lacked standing to appeal. Hollingsworth v. Perry, 5700 U.S. __ (2013).
Three Types of State Marriage State Marriage
Amendments
Nine SMAs Protect Status of Marriage*:
AK, AZ, 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)
* So did California until Perry decision of district court that the SCOTUS let stand
Twenty SMAs Protect Substance of Marriage (Forbid Giving Equivalent Substance to DPs or
CUs):
AL, AR, FL, GA, ID, KS, KY, LA, MI, NB, NC 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 to define marr (Legisla. Can Ban SSM): HI:
“The Legislature shall have the power to reserve marriage to opposite-sex
couples.” Haw. Const., Art. I, sec. 23 (1998)
State Same-Sex Marriage Laws: Legislatures
and Courts (NCSL, 21 May 2014)
December 20, 2013 – March 21, 2014:
Legalization of same-sex marriage by
judicial decree in 8 states (apps pending)
Legalizing SSM: Judges appointed by Dems: 6
Judges appointed by Republicans: 2
Rejecting SSM: Judges appointed by Dems: 0
Judges appointed by Republicans: l*
The number of District Judges appointed by Dem/GOP was equal (11/1/2013)
Six different federal district court judges have ruled recently (between December 20, 2013 and
April 1, 2014) that states marriage laws that do not allow same-sex marriage violate the U.S.
Constitution. Five of the six judges who mandated states to legalize same-sex marriage in these
cases were appointed by Democrat Presidents (Obama and Clinton); one was appointed by a
Republican President (Bush I). The cases were, in Utah (Robert J. Shelby- Obama), Ohio (Timothy
S. Black - Obama), Oklahoma (Terence Kern- Clinton), Kentucky (John G. Heyburn II- Bush I,
comity), Virginia (Arenda L. Wright Allen- Obama), and Texas (Orlando L. Garcia- Clinton).
Then, on March 14, 2014, in Tennessee, a U.S. District Judge (Aleta A. Trauge - Clinton) ruled that
Tennessee must recognize the out-of-state marriages of three same-sex couples while they
pursue a lawsuit attempting to overturn Tennessee’s dual-gender marriage law. Additionally, on
March 21, 2014, in Michigan a U.S. District Judge (Bernard A. Friedman - Reagan) struck down
Michigans dual-gender marriage law.
Appeals pending.
However, in March, another federal Judge (Barbara Crabb-Carter) in Wisconsin refused to enjoin
the state's ban on same-sex marriage pending outcome of a trial; in June she struck down the
state’s ban on SSM; but after a few days she stayed her ruling pending appeal.)
So the political dimension of the judicial trend to force states to legalize same-sex marriage is not
insignificant.
C.
Legal Allowance of Same-Sex Unions Globally (of 193 Sovereign Nations / UN):
Same-Sex Marriage Generally Legalized in up to Eighteen (18) of 193 Nations (less than 10%)*:
The Netherlands (2001), Belgium (2003), Canada (2005), Spain (2005), South Africa* (2006), Norway (2009), Sweden
(2009), Portugal (2010), Iceland (2010), Argentina (2010), Denmark (2012), Uruguay (2013), New Zealand (2013),
France (2013), Brazil* (2013), UK (England/Wales) (effective Spring 2014); Scotland (effective Fall 2014); Luxembourg
(effective January 2015). (Also in some particular sub-jurisdictions, municipalities, or states in, e.g., Mexico and the
USA)
Categorization of some nations is difficult. For example, South Africa legalized “Civil Unions” which can be can be created by way of
“marriage” and can be called “marriages,” but the Marriage Act was not amended and still only allows male-female marriage. See Civil
Union Act 17 of 2006(s. Afr.) (available at: http://www.info.gov.za/view/DownloadFileAction?id=67843). Likewise, same-sex marriage is
permitted in Brazil in 10 of 26 states, and since May 2013 civil registrars were directed to perform same-sex marriages, but the legal
status of that directive of the National Judicial Council is debatable. SSM is allowed in sub-jurisdictions of some other nations (e.g.,
thirteen states in the USA, Mexico (City). (# = law passed but not yet in effect). See uxembourg approves same sex marriage, Yahoo!
News (18 June 2014), available at http://news.yahoo.com/luxembourg-approves-same-sex-marriage-203510157.html (seen 18 June
2014).
Same-Sex Non-Marital Unions Mostly Equivalent to Marriage Allowed in Eleven* (11) Other Nations
(of 193):
Ecuador, Finland, Germany, Luxembourg, Slovenia, Andorra, Switzerland, Australia, Austria, Ireland,
Liechtenstein.
Same-Sex Partnerships (Formal, Limited but Not Equal to Marriage) Allowed in at least Five (5)
More Nations: Columbia, Croatia, Czech Republic, Hungary, Israel.
See The Pew Forum on Religion & Public Life, Gay Marriage Around the World, Feb. 8, 2013, available at http://www.pewforum.org/Gay-Marriage-and-Homosexuality/Gay-Marriage-Around-the-World2013.aspx (seen 130214). The British House of Commons voted to legalize SSM on Feb. 5, 2013. It is expected to pass another vote in the House of Commons and in the House of Lords by Summer 2013.
Id.
Categorization of some nations is difficult. For example, South Africa legalized “Civil Unions” which can be can be created by way of “marriage” and can be called “marriages,” but the Marriage Act was not
amended and still only allows male-female marriage. See Civil Union Act 17 of 2006(s. Afr.) (available at: http://www.info.gov.za/view/DownloadFileAction?id=67843). Likewise, same-sex marriage is
permitted in Brazil in 10 of 26 states, and since May 2013 civil registrars were directed to perform same-sex marriages, but the legal status of that directive of the National Judicial Council is debatable.
SSM is allowed in sub-jurisdictions of some other nations (e.g., thirteen states in the USA, Mexico (City). (# = law passed but not yet in effect)
See note re: SSM/CUs in South Africa and Brazil. Some nations with SSM also allow SSCUs. Some local jurisdictions as Greenland & in some states or provinces in Mexico, the USA, & Venezuela allow SSCUs.
Map of SSM in the World
DARK BLUE: Marriage open to same-sex couples (ring = individual cases) 1
GREEN: Recognized when performed in certain other jurisdictions (ring=))
YELLOW: Government/court announced intention to legalize (ring)
GREY: Federal recognition of marriages at the state level
LIGHTEST BLUE: Civil unions
MEDIUM BLUE: Unregistered cohabitation
GREY: Same-sex unions not legally recognized
(Colors higher in the list override those lower down.)
1Includes laws that haven't gone into effect.
D.
Legal Rejection of Same-Sex Marriage Globally:
Same-Sex Marriage NOT Allowed in 175 Sovereign Nations (all but 18 noted above).
At Least Forty-six (46) of 193 Sovereign Nations (24%) Have Constitutional Provisions Explicitly or
Implicitly Defining Marriage as Union of Man and Woman (Prohibiting SSM):
Constitutions of: Armenia (art. 32), Azerbaijan (art. 34), Belarus (art. 32), Bolivia (art. 63), Brazil (art.
226), Bulgaria (art. 46), Burkina Faso (art. 23), Burundi (art. 29), Cambodia (art. 45), China (art. 49),
Columbia (art. 42), Cuba (art. 43), Democratic Republic of Congo (art. 40), Ecuador (art. 38), Eritrea (art.
22), Ethiopia (art. 34), Gambia (art. 27), Honduras (art. 112), Hungary (art. M, Constitution/Basic Law of
Hungary (25 April 2011) (effective Jan. 2012); Japan (art. 24), Latvia (art. 110 - Dec. 2005), Lithuania (art.
31), Malawi (art. 22), Moldova (art. 48), Mongolia (art. 16), Montenegro (art. 71), Namibia (art. 14),
Nicaragua (art. 72), Panama (art. 58), Paraguay (arts. 49, 51, 52), Peru (art. 5), Poland (art. 18), Romania
(art. 44), Rwanda (art. 26), Serbia (art. 62), Seychelles (art. 32), Somalia (art. 2.7, draft Constitution
2012); Sudan (art. 15), Suriname (art. 35), Swaziland Constitution (art. 27), Tajikistan (art. 33),
Turkmenistan (art. 25), Uganda (art. 31), Ukraine (ark. 51), Venezuela (art. 77), Vietnam (art. 64). (At
least 12 of these imply dual-gender (“men and women have/may”).)
See also Hong Kong Bill of
Rights of 1991 (art. 19); Spain (art. 32, but 2005 SSM law upheld Nov 2012 anyway).
Examples: Article 24, 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, Constitution of Latvia: “The State shall protect and support
marriage—a union between a man and a woman,…” Article 42, Constitution of Columbia: the family “is
formed . . . by the free decision of a man and woman to contract matrimony . . . .” Uganda Constitution,
Art. 31: “Marriage between persons of the same sex is prohibited.” Nigeria passed a law criminalizing
SSM on May 30, 2013 - (http://jurist.org/paperchase/2013/05/nigeria-house-approves-billcriminalizing-same-sex-marriage.php) .
Homosexual conduct is illegal in 87 globally - 37 in Africa + 50 other nations globally.
http://www.globalequality.org/component/content/article/166 (130601).
II. Driving Forces Behind And Against
the Legalization of Same-Sex Marriage
A.
Legitimate Influences, Factors and Processes
Popular initiative, referenda, & legislation
B.
Illegitimate Influences Factors and Processes
Judicial legislation (ala Roe), coercion,
intimidation, Abuse of power (esp. government, e.g.
Executive & Judicial Decrees
C. Opposing Influences, Factors and Processes
Traditional Faith Communities- RC, Evang, LDS
Conservative Political Groups – Advocates
Critical Key – Responsible Advocates/Advocacy ONLY
USA ATTITUDES ARE CHANGING
USA Attitudes Differ by Age
CHANGING ATTITUDES & AGING
As people mature, their attitudes generally
moderate and become more conservative (promarital family).
As birth rates continue to fall or plateau at a
very low level, the proportion of society that
consists of persons in the youth and younger
adult ages will diminish.
III. Reason and Same-Sex Marriage:
Some of the Best Arguments Pro- and
ConA. Some of the Best Arguments for Same-Sex Marriage
Marriage is Drained of Meaning in Culture & Law
High Divorce & Cohabitation & CBOW Rates
B. Some of the Best Arguments Against Same-Sex
Marriage
Marriage Matters Mightily for Society & Families
The Consequences for Children Are Not Certain –
but Many Indications Suggest Significant Detriment
The “Collateral Damage” to Children and
Families from Legalizing Same-Sex Marriage
• 1) Demography online Study published in late 2012 by 3 Economists,
Professors Douglas W. Allen, Catherine Pakaluk, and Joseph Price reexamined a study published in 2010 by Professor Michael J. Rosenfeld that
had concluded that school progress by children raised by same-sex
couples was statistically indistinguishable from the progress made by
children raised by heterosexual married couples. Professors Allen,
Pakaluk and Price re-ran the study and found that children raised by samesex parents were 26% to 35% more likely to not make the same normal
school progress as children raised by married heterosexual parents.
• 2) Another 2012 study, by Daniel Potter, published in the Journal of
Marriage and Family reported that children raised by same-sex parent
families scored lower on Math assessment tests than their peers raised in
married, biological-parent homes.
• 3) A 2013 study Douglas W. Allen, High school graduation rates among
children of same-sex households, 10 Rev. Econ. Household 1007 (Sept.
2013), based on a 20% sample of the 2006 Census relevant population in
Canada found that children raised by gay and lesbian couples are only
about 65% as likely to graduate from high school as children from married,
opposite-sex couples.
In 2012 an extensive study by University of Texas Sociologist Mark Regnerus found that children of
mothers who had same-sex relationships were significantly disadvantaged as young adults on 25 of
the 40 child outcome measures (63%), compared to children who spent their entire childhood with
both their married, biological parents. Regnerus has been villified and abused tremendously for this.
Mark Regnerus, How Different at the Adult Children …,41 Social Sci. Res. 752 (June 2012)
IV. DOMA – A Brief Introduction
Enacted by Congress 1996 (85% support, both parties)
Signed by President Clinton
“Section 2 POWERS RESERVED TO THE STATES.” codified at 28 USCA S 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. DEFINITION OF MARRIAGE. Codified at 1 USCA S 7
"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."
Section 3 was declared unconstitutional in Windsor.
Section 3 was enacted pursuant to Congress’ Art 1 power; Section 2 per Art IV power.
U.S. v. Windsor, 570 U.S. 12 (June 26, 2013) (DOMA
Section 3 defining marriage for all fed law case)
The vote was 5-4.
There were four opinions:
The majority opinion (by Justice Kennedy, joined by Justices Ginsburg,
Breyer, Sotomayor and Kagan); and
Three dissenting opinions
by Chief Justice Roberts (alone);
by Justice Scalia (joined by Justice Thomas and in part by Chief
Justice Roberts); and
by Justice Alito (joined in part by Justice Thomas).
The majority opinion contained much broad rationale and heavy
rhetoric, and lots of pejorative language, but in the end made a
relatively narrow and specific holding: § 3 of DOMA (defining marriage
as male-female only) applicable to 1,000 federal laws was over-broad.
State authority to regulate marriage (family law federalism) normally
should be respected/recognized by Congress.
Windsor: Promoting Same-Sex Marriage in
Both State and Federal Law
In Windsor, the Court invalidated a provision of
federal law, Section 3 of the Defense of Marriage
Act (herein “DOMA”) which amended the
“Dictionary” section of the Federal Code (1 U.S.C.)
by adding Section 7, providing that:
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.
A. Windsor and Some of Its Flaws
In United States v. Windsor, 570 U.S. 12 (2013),
the Supreme Court affirmed the rulings of two
lower federal courts (a district court judgment,
affirmed on appeal) granting injunctive relief to
Edith Windsor. Ms Windsor had married
another woman in Canada; that foreign samesex marriage was deemed valid in New York. But
per DOMA the U.S. (IRS) refused to recognize
the same-sex marriage for tax purposes. Ms.
Windsor paid the tax and appealed.
The majority opinion in Windsor contains four parts.
Part I recounted the history of the case.
In Part II addressed whether the case was properly before
it for review. Some opponents of DOMA argued that the
appeal was non-justiciable because President Obama
refused to defend the law. However, because the
congressional Bipartisan Legal Advisory Group (BLAC)
stepped up to defend DOMA, and because the
congressional members of BLAG had sufficient interest in
the issue and adequate adversarial competence, the
Court concluded that there was a genuine “case and
controversy” among interested parties.
On the merits, Part III asserted that DOMA §3
violated the principles of federalism in family law.
The court emphasized the primacy of state
authority in regulating domestic relations;
regulation of marriage is a matter “reserved to the
States.”
DOMA §3 was an “unusual deviation from the
traditional principles of recognizing and accepting
state definitions of marriage” for purposes of
federal law. (Federalism in Family Law)
Part IV of Justice Kennedy’s majority opinion in
Windsor found DOMA §3 an unconstitutional
violation of “equal liberty” under the due process
provision of the Fifth Amendment, especially
(possible specifically) in the context of federalism
principles. Denial in federal law of marital status
conferred by state law was a deprivation of “an
essential part of the liberty protected by the Fifth
Amendment” because DOMA intentionally
“injured” the very class (same-sex couples) that
state marriage law in New York sought to protect, in
violation of equality principles.
The Court asserted repeatedly that the
enactment of Section 3 of Doma was motivated
by “animus,” a “desire to harm a politically
unpopular group,” to “impose a disadvantage, a
separate status, and so a stigma” upon same-sex
couples who married. Justice Kennedy asserted
that DOMA intended to deny “the equal dignity
of same-sex marriages” and wrote “inequality
into the entire United States Code.”
Four Justices Dissented in Three Opinions
Three dissenting opinions were filed by the four dissenters. Chief
Justice Roberts first asserted that the Court lacked jurisdiction to hear
the appeal dispute and rebuked the majority for claiming to find a
“sinister motive” behind the enactment of DOMA.
Justice Scalia’s dissent (joined in part by Thomas and Roberts) also
emphasized that the Court lacked jurisdiction to hear the appeal. He
further criticized and responded to what he called the majority’s
“scatter gun” opinion. On the merits of equality or equal dignity, he
asserted that the majority decision’s distorted equal protection
principles would later fall like a “second shoe” to require the states to
legalize same-sex marriage. As to the majority’s claim that section 3 of
DOMA was motivated by “animus,” by a “bare … desire to harm a
politically unpopular group,” and for “formally declaring [that] anyone
opposed to same-sex marriage [is] an enemy of human decency,” he
severely reproved the majority for relying on pejorative labeling
instead of legal analysis.
Justice Alito’s dissenting opinion (joined by
Justice Thomas in part) emphasized that “the
Constitution … does not dictate” whether samesex marriage must be legalized or recognized,
but “leaves the choice to the people, acting
through their elected representatives. …”
B. The Inappropriate Use of Demonizing,
Pejorative Language in the Windsor Opinion
Justice Kennedy’s opinion for the Court in Windsor contains at least two dozen
pejorative terms describing the Act and the intents, purposes, and motives of the
members of Congress who enacted Section three of DOMA. DOMA and supporters •
•
•
•
•
•
•
•
•
•
•
•
•
•
“seek to injure” or have caused “injury,”
inflicted “indignity,”
caused “deprivation of an essential . . . liberty,”
had a “desire to harm,”
“imposed a disadvantage,”
had the “avowed purpose . . . to impose a disadvantage,”
to impose “a stigma upon all who enter into same-sex marriages,”
they “interfere[d] with the equal dignity of same-sex marriages,”
intended to “discourage enactment of state same-sex marriage laws,”
and “to restrict the freedom of choice of [same-sex] couples,”
“to put a thumb on the scales,”
to cause persons in same-sex marriages to “be treated as second-class marriages,”
“to impose inequality,”
“contrive[d] to deprive” married couples of their rights and responsibilities,
•
•
•
•
•
•
•
•
•
•
•
•
•
•
“diminish[ed] the stability and predictability of basic personal relations the State
has found it proper to acknowledge and protect,”
“undermines both the public and private significance of state-sanctioned same-sex
marriages,”
declared that same-sex marriages “are unworthy” of recognition in federal law,
made such marriages “second-tier,”
“humiliates tens of thousands of children,”
“have . . . burdened” the lives of same-sex marriage couples,
has brought “financial harm to children of same-sex couples,”
“denies or reduces benefits . . . that are an integral part of family security,”
“divests married same-sex couples of the duties and responsibilities” of marriage,
“demeans,” and “degrades”
“single out” same-sex married persons,
“imposes a disability,”
tells all persons that same-sex marriages are “less worthy,”
and had the “purpose and effect to disparage and injure” same-sex couples
allowed to marry in some of the states.
This list does not include the use of normal non-pejorative terminology used when a
statute is found to be unconstitutional.
• Windsor reads like a political tract, as if the Court were
trying to motivate law-makers to legalize same-sex
marriage without mandating that they do so.
• Because of the strong language and broad dicta
in Windsor suggesting enthusiasm for the equality of
same-sex marriage, it will not be surprising if some
judges and other public officials read Windsor very
broadly and give it expansive application extending
beyond the holding of the case. It seems like Justice
Kennedy, the author of the Court (majority) opinion
in Windsor, hoped that his broad language would have
that penumbral political and judicial effect - going
beyond the narrow holding of the case.
• Indeed, as of October 15, 2013, there were 29 cases
pending in 18 states seeking to legalize same-sex
marriage by judicial decree.
Some Concerns about the Nasty Rhetoric in the Windsor opinion
The bullying, pejorative verbiage in Justice Kennedy’s majority opinion is
unjust, injudicious, demeaning, and provocative. The majority’s haste to
attribute “animus” and “desire to harm” or “injure” and other evil motives to
the overwhelming majority (over 80% bipartisan support) of the members of
Congress (342 members of the House of Representatives voted for DOMA to
only 67 who voted against it, and 85 of 100 Senators voted for DOMA), and
President Clinton (who signed DOMA into law) is very troubling and
legitimates name-calling and personal attacks.
The history of the movement for SSM is one of bullying, coercion, and attack
upon those who oppose legalizing SSM.
That is true in the academy as well as general society. (Count the number of
law review articles or professors supporting/opposing SSM, for example. )
First, the verbal assault is off target, the barrage is
misdirected, the criticisms are inapt. As Justice Scalia
explained: “To defend traditional marriage is not to
condemn, demean, or humiliate those who would prefer
other arrangements.
Second, such language is highly inappropriate in a court
opinion, and impairs the credibility and reputation of the
Court.
Third, such violent language sets the tone and example
for all American citizens to follow. (FRC shooting in 2012)
Fourth, the strong normative language in the majority
Opinion suggests an intent to motivate (pressure) the
States to legalize same-sex marriage – to politicize the
Court. The Court is trying to influence the political
process (perhaps for “legacy” impact purposes).
All Dissenters rejected the name-calling
Roberts, J.C.
That the Federal Government treated this
fundamental question differently than it
treated variations over consanguinity or
minimum age is hardly surprising—and hardly
enough to support a conclusion that the
“principal purpose,” ante, at 2694, of the 342
Representatives and 85 Senators who voted
for it, and the President who signed it, was a
bare desire to harm. Nor do the snippets of
legislative history and the banal title of the Act
to which the majority points suffice to make
such a showing. At least without some more
convincing evidence that the Act's principal
purpose was to codify malice, and that it
furthered no legitimate government interests,
I would not tar the political branches with the
brush of bigotry. (2696)
Scalia (& Thomas)
In sum, that Court which finds it so horrific that
Congress irrationally and hatefully robbed samesex couples of the “personhood and dignity”
which state legislatures conferred upon them,
will of a certitude be similarly appalled by state
legislatures' irrational and hateful failure to
acknowledge that “personhood and dignity” in
the first place. Ante, at 2696. As far as this Court
is concerned, no one should be fooled; it is just a
matter of listening and waiting for the other
shoe.
By formally declaring anyone opposed to samesex marriage an enemy of human decency, the
majority arms well every challenger to a state law
restricting marriage to its traditional definition.
Henceforth those challengers will lead with this
Court's declaration that there is “no legitimate
purpose” served by such a law, and will claim that
the traditional definition has “the purpose and
effect to disparage and to injure” the
“personhood and dignity” of same-sex couples . .
. . (2710)
Alito (& Thomas)
Acceptance of the [appellee’s] argument would
cast all those who cling to traditional beliefs
about the nature of marriage in the role of bigots
or superstitious fools. (2718)
C. Name-Calling is Contagious
On July 1, 2014, Federal District Judge John G. Heyburn II, a
George H. W. Bush appointee, issued an opinion invalidating
Kentucky’s ban on same-sex marriage. “These arguments
[that marriage should be only between a man and a woman],”
he wrote, “are not those of serious people,” calling them “at
best illogical and even bewildering.” He could think of “no
other conceivable legitimate reason” for Kentucky’s laws
banning same-sex marriage. (He also held that “homosexual
persons constitute a quasi-suspect class” and thus,
heightened scrutiny must apply.)
Apparently, millenia of social and legal history and the status
of contemporary marriage laws in over 90% of the nations of
the world do not amount to logical or legitimate reasons.
United States v. Windsor, 570 U.S. 12 (2013), is the first (big)
step to judicially compel states to legalize same-sex marriages.
Kenney’s opinion reads like a political pep rally tract for
SSM. Lower courts have read it that way.
Administrative burden/convenience of disparate
treatment in federal/state laws will give incentive to legalize
same-sex marriage.
Pejorative and prejudicial treatment by the Court and
courts will pressure states to legalize same-sex marriage.
The Court would prefer to avoid a direct Roe-like ruling
mandating legalization of same-sex marriage. But it wants to
encourage state legislatures and courts (and, secondarily,
lower federal courts) to legalize SSM.
However, if necessary, the Supreme Court eventually
will drop the “second shoe” and compel reluctant states to
legalize same-sex marriage, as Scalia predicted.
Effects of Legalizing SSM on Religious
Liberty
Religious Liberty is Threatened
Windsor Has Had Serious and Immediately
Detrimental Impact Upon Religious Liberty
• in July, it was reported that a Colorado baker who
refused to bake a wedding cake for a gay wedding
faced up to a year in jail and civil damages.
• In 2013, the New Mexico Supreme Court affirmed a
ruling that a private, Christian photographer who, for
reasons of personal religious conscience, turned down
a request to photograph a lesbian commitment
ceremony was liable for $6,637.94 in attorneys for
violating the state anti-discrimination law.
• In September, an Oregon bakery that declined on
religious grounds to bake a wedding cake for a samesex wedding closed; the lesbian who made requested
the cake filed a complaint and the bakery was being
investigated by the state for an alleged violation of the
Oregon Equality Act.
Loss of Religious Liberty Due to SSM
• In Massachusetts, after same-sex marriage was legalized there, “at
least twelve dissenting . . . justices of the peace [were] forced to
resign for refusing to perform same-sex marriages despite their
willingness to continue solemnizing husband-wife marriages.”
• In California: Some county clerks tried to accommodate deputy
clerks who objecting personally to issuing SSM marriage licenses. In
San Diego County: 24/112 marriage employees objected. An LA
Times survey of all 58 California counties: 23 counties allowed
employees to opt out of officiating; 35 counties did not allow opt
out.
• Catholic Charities in Massachusetts, Illinois, and the District of
Columbia ceased providing adoption services when laws mandates
SSC adoptions.
• In June 2014 LDS Social Services announced that it was stopping
adoption (but will do adoption counseling).
• Elane Photography LLC v. Willock, NM Supreme Court held (2013)
that a Christian photographer who declined on reasons of religious
beliefs to shoot a lesbian commitment ceremony had not religious
liberty defense to a complaint filed under the state nondiscrimination law by the lesbian potential clients.
Loss of Religious Liberty Due to SSM
• -Litigation has resulted from church-affiliated
charitable organizations refusing to recognize same-sex
couples as married for purpose of eligibility for student
housing and refusing to recognize same-sex couples for
purposes of “family” membership status
• -The California Supreme Court ruled against a clinic and
Catholic doctors who declined on grounds of religious
conviction s to give assisted reproduction services to a
lesbian even though they referred her to another
physician. The court rejected their defense of free
exercise of religion and freedom of expression
• Religious Liberty exemptions to SSM laws are narrow,
shallow, and inadequate. (Robin Fretwell Wilson’s
articles.)
Abuse of SSM Opponents in US, cont’d
In Washington, the AG and the ACLU have sued Arlene’s flowers because it
declined to provide flowers for a gay couple (whom it sells flowers for other
purposes). 2013.
Gallaudet University Chief Diversity Officer, Angela McCaskill, was fired after
she signed (privately) a petition opposing SSM. 2012.
Just weeks after being appointed as CEO of Mozilla Brendan Eich and Mozilla
received so much criticism because he had donating money ($1,000) in
support of proposition 8 in California that he stepped down as CEO. Mozilla
Firefox released a statement and apologized for “not remaining true to
themselves” and appointing Brendan Eich. (I immediately removed Firefox
from all my computers.) 2014.
In California, the state Supreme Court may bar judges from the Boy Scouts.
2014.
Abuse of SSM Opponents, Int’l
• In Canada, a B&B was forded to accept same-sex coules of be fined and
close. 2000.
• In Spain, a restaurant in Madrid was fined 12,000 Euros for not hosting a
gay weddign party. 2006.
• In Spain, a judge was fined for refusing to marry a same-sex couple and
criticizing the legalization of same-sex marriage. 2007.
• In Spain, another judge’s request to opt-out of performing a same-sex
marriage was denied and he was forced to marry the gay couple. 2009.
• In Spain, parents were denied conscientious objection requests to
withdraw their children from teaching about gay marriage in civics classes.
• In the UK, an experienced Christian foster care couple (Johns) were barred
from having foster children because of the belief that marriage should be
limited to male-female couples. 2011.
• In Israel, a lesbian couple won a suit against a Messianic church in
Jerusalem that declined to host a same-sex wedding. The church had to
stop celebrating all marriages to avoid allowing SSMs. 2012.
Abuse of SSM Opponents, Int’l, cont’d
•
•
•
•
•
•
•
•
In the UK, a Bristol marriage counselor was fired for refusing to give sex therapy to
homosexuals. 2012.
In Spain, a Catholic Bishop was threatened by gay groups with prosecution after he
preached a sermon presenting the RC Church position against homosexuality. 2012.
In the London Olympics Australian same-sex couples were allowed to cohabitate, but
not a heterosexual couple. 2012.
In France, a mayor (Jean-Michel Colo) may be sentenced to 5 years incarceration and
fined $75,000 for not performing a gay marriage. 2013.
In the UK, a gay couple has sued the Church of England to force it to allow SSM. 2013.
In the UK, a court ruled against owners of a small B&B who turned away a same-sex
couple. 2013.
In the UK, a police chaplain was forced out of his position after criticizing the
government's plans for gay marriage on his personal blog. 2013.
In the UK, a marriage registrar in Islington was forced to leave her job after she refused
to perform civil partnership ceremonies on the grounds that she regards
homosexuality as a sin. 2014.
The Structural Effects of SSM on the
Constitution & the “constitution”
THE “constitution” (lower-case “c”) of a nation or state
(hereinafter “nation”) exists apart from the legal
“Constitution” (upper-case “C”) of a nation. The
constitution of a nation usually is formed long before the
Constitution of that nation is written or adopted.
The formal structure of government and society rest upon
a sub-structure including importantly marriage and
family.
When the sub-structure is changed or shifts, the
superstructure also is altered.
Thus, SSM endangers our constitutional government.
Human Nature and Human Relations
and the Constitution
The Founders grasped that the nature of
government and human nature are inextricably
linked. As James Madison, the Father of the
Constitution, put it: [W]hat is government itself,
but the greatest of all reflections on human
nature?” They also understood the social
dimension of human nature well.
Finally, the Founding Fathers also had a very
sober understanding of the duality of human
nature (capacity for good and evil).
Locke’s Linkage
“America’s philosopher” (England’s , John Locke)
observed that mankind has a nature that is
“under strong Obligations of Necessity,
Convenience, and Inclination, to drive him into
Society . . . . The first Society was between Man
and Wife . . . .” – Second Treatise of Government
Aristotle & Cicero
Aristotle stated that the regulation of marriage was the first duty of the wise
legislator. “-- 10 Aristotle, Politica, in THE WORKS OF ARISTOTLE TRANSLATED INTO
ENGLISH I, 1334b–1335a (W.D. Ross. ed., Benjamin Jowett trans., Oxford
University Press 1st ed. 1921).
Cicero (106-34 B.C.), the leading jurist and moralist of his day, for example,
called marriage a natural partnership of the person and property of husband
and wife that served for procreation, for companionship, and ultimately for
the broader cultivation of dutiful affection, kindness, liberality, good-will,
courtesy, and the other grace of the same kind.” Cicero described marriage as
creating “the first bond” of society and as “the foundation of civil
government, the nursery, as it were, of the state.” - CICERO, DE OFFICIIS bk. I, at
57 (Walter Miller trans., Harvard University Press 2001) (c. 50 B.C.E.); see also
John Witte, Jr., The Goods and Goals of Marriage, 76 NOTRE DAME L. REV.
1019,1024 (2001).
.
As human beings are social, the first experience in society is critical. Our first
society, our first interaction involving any society, is in a family. Family
relations create the template that we will use in forming all other relations.
Praise of Marriage by the SCOTUS
The SCOTUS has praised marriage repeatedly.
Reynolds v. United States, 98 U.S. 145, 165 (1878) (“Upon it [marriage] society may be said to be
built, and out of its fruits spring social relations and social obligations . . . .”);
Murphy v. Ramsey, 114 U.S. 15 (1885) (“For certainly no legislation can be supposed more
wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank
as one of the coordinate states of the Union, than that which seeks to establish it on the basis of the
idea of the family, as consisting in and springing from the union for life of one man and one woman
in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization;
the best guarantee of that reverent morality which is the source of all beneficent progress in social
and political improvement.”)
Maynard v. Hill, 125 U.S. 190, 211 (1888) (characterizing marriage as “the foundation of the family
and of society”);
Loving v. Virginia, 388 U.S. 1, 12 (1967) (citing Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)
“Marriage and procreation are fundamental to the very existence and survival of the race.”).
As human beings are social, the first experience in society is critical. Our first society is the family.
Family relations create the template that we will use in forming all other relations.
Virtue Is Necessary for our
Constitutional Republic
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. Virtue was the
common bond that tied together the Greek, Roman, Christian,
British, and European ideas of government and politics to
which the Founders responded.
-- RICHARD VETTERLI & GARY BRYNER, IN SEARCH OF THE REPUBLIC:
PUBLIC VIRTUE AND THE ROOTS OF AMERICAN GOVERNMENT 1 (1996).
Federalists and Anti-Federalists
Both supporters and opponents of the
Constitution of 1787 believed that virtue was
essential to a popular republic and that
immortality and corruption could be looked
upon as forerunners of tyranny.
The Federalist Papers
“[W]hat is government itself but the greatest of all reflections on human nature? If men were angels no
government would be necessary. If angels were to govern men, neither external nor internal controls
on government would be necessary. In framing a government which is to be administered by men
over men, the great difficulty lies in this: you must first enable the government to control the
governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt,
the primary control on the government; but experience has taught mankind the necessity of auxiliary
precautions.”
-The Federalist Papers, No. 51 (1787) (J. Madison)
“The aim of every political Consitution is or ought to be first to obtain for rulers men who posses most
wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place,
to take the most effectual precautions for keeping them virtuous whilst they continue to hold their
public trust.”
-The Federalist Papers, No. 57 (1787) (J. Madison)
Guarantees of individual liberty [such as those embodied in various Bills of Rights] “must altogether
depend on public opinion, and on the general spirit of the people and of the government.”
-The Federalist Papers, No. 84 (1787) (A. Hamilton)
Benjamin Franklin
In the constitutional convention of 1787, he voiced his concern
that although the new government would likely ‘be well
administered for a course of years’, it would ‘end in
Despotism, as other forms have done before it, when the
people shall have become so corrupted as to need despotic
Government, being incapable of any other.’
On another occasion Franklin declared that: “Only a virtuous
people are capable of freedom. As nations become corrupt
and vicious, they have more need of masters.”
George Washington
Washington wrote in a letter to Lafayette in 1778, that ‘when a people shall have become
incapable of governing themselves and fit for a master, it is of little consequence from
what quarter he comes.’
-The Papers of George Washington, Letter of Apr. 28, 1788.
Washington also declared, “Free suffrage of the people can be assured only ‘so long as there
shall remain any virtue in the body of the people.’”
-The Papers of George Washington, Letter of Feb. 7, 1788.
“[T]he foundations of our National policy will be laid in the pure and immutable principles of
private morality”
-Inaugural Address of 1789
“Of all the dispositions and habits which lead to political prosperity, religion and morality are
indispensable supports. . . Reason and experience both forbid us to expect that national
morality can prevail in exclusion of religious principles.”
-Farewell Address (Sept. 17, 1796)
John Hancock
In the ratification convention in Massachusetts,
Hancock expressed his belief that the people
would be secure under the new government
“until they themselves become corrupt.”
Vetterli & Bryner, supra
James Madison
Madison told the Virginia ratifying convention :
“To suppose that any form of government will secure
liberty or happiness without any virtue in the people,
is a chimerical idea.”
-The Writings of James Madison 223
(Gaillard Hunt ed., 1904)
Samuel Adams
“Neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a
people whose manners are universally corrupt. If we are universally vicious and
debauched in our manners,’” he warned, “though the form of our Constitution carries the
face of the most exalted freedom, we shall in reality be the most abject of slaves.”
-The Life and Public Services of Samuel Adams 22-23
(William V. Well ed., 1865)
*Adams wrote to Richard Henry Lee that whether or not American was to be able to enjoy its
hard worn “independence and freedom . . . depends on her virtue.”
-Vetterli & Bryner, supra
Adams further admonished in a letter to James Warren (Nov. 4, 1775): “He who is void of
virtuous attachments in private life is, or very soon will be, void of all regard for his
country. There is seldom an instance of a man guilty of betraying his country, who had
not before lost the feeling of moral obligations in his private connections. . . .”
-Vetterli & Bryner, supra
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 Infancy, they learn
their Mothers live in Habitual Infidelity to their fathers, and their fathers in as constant Infidelity to their
Mothers?”
-4 Diary and Autobiography of John Adams 123 (L.H. Butterfield, et al. ed. 1961)
“Statesmen by dear Sir, may plan and speculate for Liberty, but it is Religion and Morality alone, which can
establish the Principles upon which Freedom can securely stand. . . The only foundation of a free
Constitution, is pure Virtue, and if this cannot be inspired into our People, in a great Measure, than they have
it now, They may change their Rulers, and the forms of Government, but they will obtain a lasting Liberty.”
-Letter to Zabdiel Adams, June 21, 1776
“We have no government armed with power capable of contending with human passions unbridled by morality
and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as
a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly
inadequate to the government of any other.”
-Letter from John Adams to the Officers of the First Brigade of the Third Division of the Militia of Massachusetts
(1798) in 9 Life and Works of John Adams 229 (1954) (emphasis added)
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. No free
government, or the blessings of liberty, can be
preserved to any people but by a firm adherence
to justice, moderation, temperance, frugality, and
virtue; and by a frequent recurrence to
fundamental principles.”
Source: http://quotes.liberty-tree.ca/quotes_by/patrick+henry.
Northwest Ordinance
•
“Religion, morality and knowledge being
necessary to good government and the
happiness of mankind, schools and the means
of education shall forever be encouraged.”
•
Ordinance of the Northwest Territory, art.
III (1787)
“Virtue” Clauses
The importance of virtue was explicitly acknowledged in several of the state constitutions of
the founding era. The original Vermont Constitution of 1777 contained a “Virtue
Clause,” ch. II, § 41, later combined in the revised Vermont Constitution of 1786 with the
“Education Clause” to read. “Laws for the encouragement of virtue and prevention of vice
and immorality, ought to be constantly kept in force, and duly executed: and a competent
number of schools ought to be maintained in each town, for the convenient instruction of
youth. . . .” Vt. Const. of 1786, ch. II,
Commenting on the evolution of this provision the Vermont Supreme Court noted:
In 1786, as noted, the Virtue and Education Clauses were combined to form a single
section. Nothing could be more indicative of the close connection in the minds of the framers
between virtue and all that that implied—civic responsibility, ethical values, industry, selfrestraint—and public education than this textual union within the Constitution. No
explanation for the 1786 modification survives, but the logical connection is self-evident.
The amalgamation was perfectly consistent with the commonly held view of the framers
that virtue was essential to self-government, and that education was the primary source
of virtue.
. . . .In thus characterizing education as the “cement of [the] State,” Allen was expressing
“a central tenet of republicanism: no democracy can survive without a virtuous citizenry. . .
‘and to inspire it ought to be the principal business of education.’”
-J. Nelson, Adequacy in Education: An Analysis of the Constitutional Standard in Vermont, 18 Vt. L. Rev. 7, 3537 (1993), citing Brigham v. State, 692 A.2d 385, 392-94 (Vt. 1997).
Marriage and Virtue
“American republicans saw “marriage as a training
ground of citizenly virtue.”
Likewise, “it served as a ‘school of affection’ where
citizens would learn to car about others.”
One founding era writer noted that “by marriage ‘man
feels a growing attachment to human nature, and love
of his country.’”
-Nancy F. Cott, Public Vows, A History of Marriage and the Nation
18-20 (2000)
Francis Grund
An Austrian social commentator (and contemporary of Alexis de
Tocqueville), Francis Grund, 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)
Conclusion: How many legs …?
Abraham Lincoln reportedly asked a heckler: “How many legs would a calf have if
you called the tail a leg?”
The heckler responded: “Five.”
“No,” said Lincoln, “calling a tail a leg a doesn’t make it a leg.”
Men and women are different in profound, important ways that enrich society.
The union of a man and woman is different from unions of two men or two women
in profound, important ways that enrich society.
Preserving the dual-gender, gender integrating qualities of marriage is important to
society to preserve the unique & distinctive contributions of dual-gender (genderintegrating) marriage for society.
Create SSCU, Pactes Civiles, domestic partnerships = OK
Redefine marriage to eliminate gender integration = NOT OK
Calling the union of two men or two women a marriage doesn’t make it a marriage
– doesn’t confer on the parties or society the valuable qualities of marriage.
“Calling a tail a leg doesn’t make it a leg.”
Other Trends Indicating A Decrease in Social
Recognition of the Value of, and in Social
Commitment to Traditional Marriage and Marital
Families.
Have these developments laid the groundwork for legalization of
same-sex marriage?
Percentage of Couples Cohabiting Without Marriage
http://familyfacts.org/charts/110/one-in-10-couples-living-together-is-unmarried (seen 11 March 2011), citing U.S. Census Bureau,
Current Population Survey, 2010.
Table 1. Unmarried Cohabitants in USA, 19702010
Year
1970
1980
1990
2000
2006
2010
Unm’d P Hhlds
523,000
1,589,000
3,668,000
5,500,000
6,017,462
7,700,000
% Hhlds
0.8%
2.0%
3.1%
4.3%
5.4%
>10.1%
The Annual Marriage Rate has Fallen Dramatically
Number of Marriages per 1000 Women age 14+
http://familyfacts.org/charts/105/the-annual-marriage-rate-has-declined-significantly-in-the-past-generation (seen 11 March 2011), citing
Statistical Abstract of the United States, National Vital Statistics Reports, and The Heritage Foundation, 2010.
Percent of Married Adults, Age 15+
Pew (2011):
Marriage Has Dropped In Importance for Young Adults in US
Wendy Want & Paul Taylor, For Millennials, Parenthood Trumps Marriage, Pew Research Center, available at
http://pewresearch.org/pubs/1920/millennials-value-parenthood-over-marriage (seen 14 March 2011).
U.S. CHILDREN BORN OUT OF WEDLOCK 1940-2010
Year
All Races
Number
Rate/1000 live
births
White Number
Rate/1000 live
births
Non-White
Number
Rate/1000 live
births
1940
89,500
38
40,300
19.5
49,200
168.3
1950
141,600
40
53,500
17.5
88,100
179.6
1960
224,300
53
82,500
22.9
141,800
215.8
1970
398,700
107
175,100
56.6
223,600
349.3
1980
665,747
184
320,063
110.4
345,684
484.5
1990
1,165,400
266
647,400
169
472,700 bl
667 bl
2000
1,347,000
332
866,000
271
427,000 bl
685 bl
2005
1,527,000
369
--
317
--
693 bl
2007
1,714,600
397
--
--
--
--
2008
--
410
--
--
--
--
2010
--
408
--
--
--
--
Birth Rate for Unmarried and Married Women – The Gap is Closing
The gap between married and unmarried birth rates has narrowed, The Heritage Foundation, 2011, at
http://familyfacts.org/charts/213/the-gap-between-married-and-unmarried-birth-rates-has-narrowed .
Fig. 1. Percentage of US Children born out of marriage
Source: http://familyfacts.org/charts/205/more-than-four-in-10-children-are-born-tounwed-mothers (citing U.S. Census Bureau, National Center for Health Statistics, 2010.)
REDUCTION OF CHILDBEARING:
Due to low fertility rates, a “demographic winter” is descending upon affluent nations.
British historian Niall Ferguson calls this imminent demographic change “the greatest
sustained reduction in European population since the Black Death of the 14th
Century.”
Births are below replacement level (2.1 births per couple) in over 70 nations. The
Organization for Economic Cooperation and Development (OECD) reports that none of
the nations of Europe can maintain their population (necessary for economic
sustainability) through births, that only France, (with a birth rate of 1.8) has the
possibility to do so. In fifteen European nations the rate of fertility is 1.3 or below, -(a birthrate of 1.4 or 1.5 means that the population will decrease by one-third each
generation).
The United Nations Report on World Populating Ageing 1950-2050 notes: “[T]he
average total fertility rate in the more developed regions [of the world] has dropped
from an already low level of 2.8 children per woman in 1950-1955 to an extremely low
level of 1.5 children per woman in 2000-2005. Presently, the total fertility rate is
below the replacement level in practically all industrialized countries. In 19 of those
countries, the rate is under 1.3 children per woman.”
The U.S. Fertility Rate Has Fallen
(Especilly During Periods of Economic Decline)
• Estimated by Population Reference Bureau. National Center for Health Statistics
• Source: PRB, World Population Date Sheet 2012, Fact Sheet: The Decline in U.S. Fertility
U.S.A. Current (2014) Birth Rate
• 2014 estimate: 2.01
• 2.1 is the replacement level to keep
population without increase or decrease
-- The World Factbook,
https://www.cia.gov/library/publications/theworld-factbook/rankorder/2127rank.html (CIA
140703)
Number of divorces per 1,000 married women (age 15+)
http://familyfacts.org/charts/120/the-divorce-rate-is-declining-but-still-high
American Children Under Eighteen Years-Old Living With a Single Parent
One in four children lives in a single-parent home, The Heritage Foundation, 2011, at
http://familyfacts.org/charts/135/one-in-four-children-lives-in-a-single-parent-home .
Six Reasons to Oppose Legalization of
Same-Sex Marriage
1. The Constitution protects traditional marriage but does not create or protect
a right to same-sex marriage. Unlike racial equality clearly adopted by
constitutional amendment process (and Civil War) not “constitutional consensus”
for same-sex marriage.
2. Dual-Gender Marriage Laws Do Not Violate Equal Protection (Loving analogy
flawed: General Colin Powell (re: gays in the military): “Skin color is a benign, nonbehavioral characteristic. Sexual orientation is perhaps the most profound of the
human behavioral characteristics. Comparison of the two is a common but invalid
argument.”
3. Male-Female Marriage does not violate gender equality. Legal requirement
of one man and one woman for marriage is the oldest gender equality rule
in the law. Justice RBGinsberg: “Physical differences between men and
women, however, 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. Genderintegration acknowledges the “mixity” of humanity.
cont’d …
Six Reasons to Oppose Legalization of
Same-Sex Marriage, cont’d
4. Same-sex marriage influences (harms) all marriages -- the
foundation, the substructure of society.
“As the family goes, so goes the nation, and so goes the world in which we
live.” -- Pope John Paul II
“[M]arriage and the family are rooted in the most intimate core of
truth about man and his destiny.” Pope Benedict XVI (CAN, May 11, 2006)
“When the home is destroyed, the nation goes to pieces.” –
President Spencer W. Kimball.
“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.
“ ‘I believe in the home as the foundation of society, as the
cornerstone of the nation…. I cannot conceive of a great people without
great, good homes. . . . ’” President (Elder)Thomas S. Monson, Ensign 1997 November
(quoting Stephen L. Richards).
Five Reasons to Oppose SSM, cont’d
5. “Calling a tail a leg does not make it a leg.” – Abraham Lincoln
6. Legalizing SSM erodes religious liberty; the conflict between the two is inevitable.
See slides above Persecution of Opponents of SSM.
Disintegration of Religious Liberty in California After SSM Was Legalized
After California voters passed Proposition 8, supporters of Prop I were vilified and
harassed. Mormons, in particular, were singled out and widely blamed.
--Names and addresses of Mormons and others who donated to support Pro 8 were
published on the internet. The result was violent threats against, attacks upon, and
intrusions upon selected Mormons, their places of worship, their communities, their
businesses, and their employment.
--Protesters rallied outside the Mormon Temple in University City, California
--LDS Meeting houses were vandalized
--Envelopes of white powder were delivered to two LDS temples
--Vandals spray-painted the words “No on Prop I” at a Mormon church in Orangevale,
CA
--Police called out to protect Mormon temple in Los Angeles against trespassing gay
protesters who wrote anti-Mormon messages on the temple gates and walls
--Ten church buildings in the Sacramento region were vandalized
• LDS businessman’s online magazine for LDS community hacked into &
replaced with lesbian images.
• Boycott of:
– restaurant whose LDS manager had donated $100 to Prop. 8
– Car dealer for support of Prop. 8
– (considered) Cinemark, whose CEO contributed to Prop. 8
• California Musical Theatre artistic director & LDS (Scott Eckern) resigned
under pressure to protect theatre from criticism because he donated
$1000.
• Richard Raddon, LA Film Theatre Director, resigned from his prestigious
job after threats of boycott over his donation to Prop. 8. (Similar incident
in Oakland – prominent citizen not reappoint because donated.)
• Fred Karger, pro-same-sex marriage activist, filed to revoke LDS Church
501(c)(3) status.
• US Olympic Committee Chair (gymnastics Gold Medalist) Peter Vidmar
resigned because of pressure because he contributed to “Yes of Prop 8”
• 24 August 2011 headline “Florida teacher suspended for views on gay
marriage.” “He was Teacher of the Year last year, but just days before the
new school year begins at Mount Dora High School in … Florida, Jerry Buell
has been removed from teaching duties. His offense? He said he opposed
gay marriage on his private Facebook page.” (Michael DeGroote, Des
News, at A3).
Posted 2 days after Prop 8 passed
Source: http://yesproposition8.blogspot.com/2008/11/beauty-of-no-crowds-tolerance.html
Latter-day Saints and California Proposition 8 at http://en.fairmormon.org/Latterday_Saints_and_California_Proposition_8
http://www.meridianmagazine.com/ideas/081110hate.html
http://www.meridianmagazine.com/ideas/081110hate.html
http://www.meridianmagazine.com/ideas/081110hate.html
Video Shows Gay 'Marriage' Backers Terrorizing Cross-Carrying Elderly Woman and Reporter
http://www.lifesitenews.com/ldn/2008/nov/08111010.html
Prop. 8 protesters march in Salt Lake City, Daily Universe Nov. 10, 2008
http://newnewsnet.byu.edu/story.cfm/70166
1)
2)
3)
4)
5)
6)
7)
8)
The Future Effects of Windsor and the
Movement for SSM?
Windsor was, and was intended to be, a shot in the arm for the political
movement to legalize SSM. (The Court majority wants the political branches to
legalize SSM. They want to avoid another Roe v. Wade.)
Politicians who support SSM in the states and in Congress are trying to build on
that by introducing new legislation, perhaps new Executive Orders.
“Progressive” courts have used Windsor to judicially impose SSM in some
jurisdictions.
Windsor did not settle the marriage policy debate, but revitalized it and gave a
shove to help one side.
In our democracy, the voice of the people matters! Letters (to the editor, to
elected officials, to family & friends), questions in public discussions, support
for sound candidates can influence the outcome bit-by-bit.
Timing matters. In 8-10 years we may see SSM legalized in all/most states or
nationally (or not). If so, that will have less extreme negative impact than if
SSM is legalized in 2-3 years.
Our laws send powerful messages, especially to the young and the vulnerable.
We must work to keep the marriage message valid and true.
Will there be a revival of the recognition of the importance of marriage is some
communities, states and nations??
In no small part, IT IS UP TO YOU.
Thank You