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

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How Legalizing Same-Sex Marriages Harms
Individuals, Families and Society Whats the
Harm and Is There Hope to Prevent It?

• By Lynn D. Wardle
• Bruce C. Hafen Professor of Law
• J. Reuben Clark Law School, Brigham Young
  University
• Presented to Interfaith Coalition
• at the Parish of St. Mel, Fair Oaks, CA
• Sunday, October 10, 2008

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Lest We Take Ourselves Too Seriously

• Bumper Sticker on Wifes car
• Sometimes in the morning I wake up grumpy, but
  usually I just let him sleep!

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New Yorker cartoon Mom to daughter l honestly
don't know what youre waiting for By the time I
was your age, Id been married and divorced
twice."
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Some Preliminary Points

• Thank you, Thank you, Thank You
• The issue Is About Marriage!
• Calling a same-sex union a marriage does not make
  it so.
• 5) We didnt choose but cannot avoid this
  battle.

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Harm to Individuals
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• It was the best of times it was the worst of
  times, it was the age of wisdom it was the age of
  foolishness, it was the epoch of belief it was
  the epoch of incredulity, it was the season of
  light it was the season of darkness, it was the
  spring of hope it was the winter of despair, we
  had everything before us we had nothing before us
  . . . . Charles Dickens, A Tale of Two Cities
  (1859).
•  

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The Worst of Times

• 1) Globally and in the United States, marriage
  and the marital family are under besieged by
  social and ideological influences that threaten
  and have greatly weakened these foundational
  social institutions. Radical social experiment
  threatens already-weak marriage.
• Today, the greatest challenges to the family
  today are from internal disintegration rather
  than external deprivation. None of contemporary
  dangers facing families are more threatening to
  the institution of marriage than the movement to
  legalize same-sex marriage

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• For example, in the USA
• More than 50 of all couples cohabit before their
  first marriages (2002)
• More than 40 of all marriages end in divorce
  (2004)
• Nearly 37 of all births were out of wedlock
  (2005)
• Nearly 25 of all known pregnancies are aborted
  (2005).

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• 2) When Marriage and Marital Families
  Disintegrate, Society and Individuals Suffer,
  Struggle and Are Vulnerable.
• Anthropologist David W. Murray
• Legal Historian Charles Reid
• Law Professor John Witte
• As the family goes, so goes the nation, and so
  goes the world in which we live. -- Pope John
  Paul II
• When the home is destroyed, the nation goes to
  pieces. President Spencer W. Kimball, Ensign,
  May 1978.
• A nation will rise no higher than the strength
  of its homes. If you want to reform a nation,
  you begin with families . . . . President Gordon
  B. Hinckley, (Interview with Mike Wallace)
• I believe in the home as the foundation of
  society, as the cornerstone of the nation, and as
  the primary institution of the Church. I cannot
  conceive of a great people without great, good
  homes. . . .
• Thomas S. Monson, Ensign 1997 November (quoting
  Stephen L. Richards).

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Institute for American Values 2008 Study

• Public costs to American taxpayers of family
  marital break-up and of non-marital child-bearing
  (CBOW) in the United States, total at least 112
  billion each year for American taxpayers
• 70 Billion federal tax dollars and
• 42 Billion state and local tax dollars each
  year.
• -- In California the public (tax) costs of family
  fragmentation amount to 4.829 billion in taxes
  per year (11.5 of the total CA state and local
  tax burden).

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3) Globally and in the United States, there is a
strong movement to legalize SSM.

• Same-Sex Marriage Legal Six Nations and Three
  USA States The Netherlands, Belgium, Canada,
  Spain, South Africa, and Norway (2009) (US MA
  CA CN)
• Same-Sex Unions Equivalent to Marriage Legal in
  Thirteen Nations and Six US States Denmark,
  Norway, Sweden, Iceland, Finland, France,
  Germany, Luxembourg, Slovenia, South Africa,
  Andorra, Switzerland, UK, New Zealand (US CA,
  CN, NH, NJ, OR, VT).
• Same-Sex Unions Registry Some Benefits in Seven
  Nations and Five US states Argentina, Columbia,
  Croatia, Czech Republic, Hungary, Israel,
  Portugal (US AK, DC, HI, ME WA)
• Nations (0) With Constitutions Explicitly
  Requiring Same-Sex MarriageNone
• Nations (2) Where the Judiciary Has Required
  Same-Sex Marriage
• Canada South Africa (US States MA CA VT
  NJ sscu)
• Nations (4) Where the Political Branches Have
  Adopted Same-Sex Marriage
• The Netherlands, Belgium, Spain Norway law
  effective 2009

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Global (US) Progress of Same-Sex Marriage, and
Marriage Equivalent Civil Unions or Partnerships,
1985-2007
Conclusions
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Eleven Court Rulings Mandating Same-Sex Marriage

• Hawaii Baehr v. Miicke, 196 WL 694235 (Haw.
  Cir. Ct. 1996), or remand from Baehr v. Lewin,
  852 P.2d 44, 67 (Haw. 1993), revd by
  constitutional amendment (1998).
• Alaska Brause v. Bureau of Vital Statistics,
  No. 3AN-95-6562, 1998 WL 88743 at 6 (Alaska.
  Super. Ct., Feb. 27, 1998) reversed by
  constitutional amendment (1998).
• Massachusetts Goodridge v. Department of Public
  Health, 798 N.E.2d 941, 943, 959 Mass. 2003) In
  re Opinion of the Justices to the Senate, 802
  N.E.2d 565, 569-71 (Mass. 2004).
• Oregon Li v. State, 2004 WL 1258167 (Or. Cir.
  April 20, 2004), revd, 110 P.3d 91 (Ore. 2005).
• Washington Andersen v. King County, 2004 WL
  1738447 3,4,11 (Wash. Super. 2004) and Castle v.
  State,
• 2004 WL 1985215, 11 (Wash.Super. Sep 07, 2004),
  revd Andersen v. King County 138 P.3d963 (Wn.
  2006).
• Maryland Deane v. Conway, Case No.
  24-C-04-005390 (Cir. Crt. Balt. City, Md. Jan.
  20, 2006), available at http//www.baltocts.state.
  md.us/civil/highlighted_trials/Memorandum.pdf ,
  revd Conaway v. Deane 932 A.2d 571 (Md. 2007).
• New York Hernandez v. Robles, 794 N.Y.S.2d 579
  (N.Y.Sup., Feb. 4, 2005) revd Hernandez v.
  Robles 855 N.E.2d 1 (N.Y. 2006).
• CaliforniaIn re Coordination Proceeding, Special
  Title Rule 1550(c) Marriage Cases, No. 4365,
  2005 WL 583129 (Cal. Super. Crt. San. Fran., Mar.
  14, 2005), affd In re Marriage Cases, 183 P.3d
  384 (Calif. 2008).
• Connecticut Kerrigan v. Commissioner of Public
  Health, SC 17716 (Conn. Oct. 10, 2008)

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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).

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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

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4) Same-Sex Marriage Damages Marriage Harms
Individuals, Families Society , Civil
Liberties, Especially Religious Liberty

• 3 flaw with the sky didnt fall, so whats the
  harm?
• 1) It shifts the Burden of Proof
• 2) It diverts attention from long-term harm
  issue.
• 3) Already some harms are documented
• SSM changes the script of marriage
• It changes marriage by the transformative power
  of inclusion

casual
casual
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The Transformative Power of Inclusion

• The qualities of same-sex relationships will
  redefine the acceptable characteristics and
  behaviors of marriage
• Sexual promiscuity, fidelity, and multiple sex
  partners
• 2003 AIDS Journal Dutch Study
• - 86 of new HIV/AIDS infections in gay men were
  in men who had steady partners.
• - Gay men with steady partners engage in more
  risky sexual behaviors than gays without steady
  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.

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• 2006 Norway Sweden The divorce-risk levels
  were about 50 higher for registered gay men
  partnerships than for comparable heterosexual
  couples, and controlling for variables, the risk
  of divorce was twice as high (100-150 higher )
  for lesbian couples as it was for gay men
  couples.
• 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.
• SSM seeks to change marriage. SSM is not
  marriage but pseudomarriage as Pope Benedict so
  aptly described it.
• SSM is not a claim for tolerance but for special
  preference that denies and reduces the value of
  marriage.

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• Same-Sex Marriage Threatens Individual Civil
  Rights Including Religious Liberties.
• Advocates of same-sex marriage seek to change
  marriage, not marriage
• The claim for Same-Sex Marriage is Not a Claim
  for Tolerance
• 1,138 Federal laws, and 300-500 state laws
• Changing the core definition of marriage in the
  law will lead to clashes between law and
  religion.
• Those who oppose same-sex marriage will be simply
  bigots.
• - Opposition to same-sex marriage be invidious
  discrimination
• Soup kitchens, homeless shelters, hospitals,
  social services agencies hurt.
• -In Massachusetts Boston Catholic Charities, had
  to shut down.
• -Olive Branch adoption agency and Adoption.com in
  California
• -

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• In California
• CA SCT decision weeks ago Catholic doctor liable
  because declined ART services to a lesbian
• -Calif SB 777 and Calif double-standard student
  put-down case (
• Elsewhere
• -Georgetown University
• United States, the Boy Scouts denied privileges
  and public facilities.
• -Canada, Knights of Columbus was held liable
  -Hospital (abortion already, so same-sex
  marriage, also)
• -Educators and schools are vulnerable.
• - Massachusetts numerous controversies
• - British Columbia, Trinity Western University
  denied accreditation
• Free speech rights have already been abused
  effort to silence oppons
• -Sweden Pentacostal Pastor Ake Green
• -Similar cases have been reported in Canada and
  England PA OH (administrator at College).
• Suit against CDC counselor for referral
  (homophobic)
• - Ireland, ICCL warned that Catholic Bishops and
  clergy of hate speech

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5) SSM Threatens the Foundation of Our
Constitutional Government - Virtue

• The idea of virtue was central to the political
  thought of the founders of the American republic.
  Every body of thought they encountered, every
  intellectual tradition they consulted, every
  major theory of republican government by which
  they were influenced emphasized the importance of
  personal and public virtue. It was understood by
  the founders to be the precondition for
  republican government, the base upon which the
  structure of government would be built.
• -Richard Vetterli Gary Bryner, In Search of the
  Republic 1 (1996)

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• Benjamin Franklin declared that Only a virtuous
  people are capable of freedom. As nations become
  corrupt and vicious, they have more need of
  masters.
• John Adams The foundation of national
  morality must be laid in private families . . . .
  How is it possible that Children can have any
  just Sense of the sacred Obligations of Morality
  or Religion if, from their earliest Infancey,
  they learn their Mothers live in Habitual
  Infidelity to their fathers, and their fathers in
  as constant Infidelity to their Mothers?
• Our Constitution was made only for a moral and
  religious people. It is wholly inadequate to the
  government of any other.
• Patrick Henry Bad men cannot make good
  citizens. It is when a people forget God that
  tyrants forge their chains. A vitiated state of
  morals, a corrupted public conscience, is
  incompatible with freedom.

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Francis Grund

• An Austrian social commentator and contemporary
  of Alexis de Tocqueville wrote
• The American Constitution is remarkable for its
  simplicity but can only suffice a people
  habitually correct in their actions, and would be
  utterly inadequate to the wants of a different
  nation. Change the domestic habits of the
  Americans, their religious devotion, and their
  high respect for morality, and it will not be
  necessary to change a single letter in the
  Constitution in order to vary the whole form of
  their government.
• -Francis J. Grund, The Americans, in the Moral,
  Social, and Political Relations 171 (1837)

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THE BEST OF TIMES6) Global Movement to Protect
Marriage Protection of Marriage Family is
Global Norm

• Explicit constitutional protection for family and
  marriage is the global norm in international and
  comparative constitutional law today.
•  
• The Universal Declaration of Human Rights adopted
  1946, recognizes that the family is the
  natural and fundamental group unit of society and
  is entitled to protection by society and the
  State.

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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

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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

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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)

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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,

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• 7) In the United States There Is A Grassroots
  Movement to Give Constitutional Protection to
  Conjugal Marriage and Marital Families That
  Surpasses the Movement for Same-Sex Marriage.

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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).

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27 States That Have Adopted Constitutional
Amendments Protecting Conjugal Marriage and
States with Pending Votes on Marriage Amendments
27 States with marriage amendments
3 States with pending votes (Nov. 2008)

• Alaska
• Alabama
• Arkansas
• Colorado
• Georgia
• Hawaii
• Idaho
• Kentucky
• Kansas
• Louisiana
• Michigan
• Mississippi
• Missouri
• Minnesota
• Nebraska
• Nevada
• North Dakota

• Arizona
• California
• Florida

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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).

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Strong minority support for marriage

• General Colin Powell described the difference
  between black civil rights claims for equality
  and gay rights claims for equality. Skin color
  is a benign, non-behavioral characteristic
  sexual orientation is perhaps the most profound
  of human behavioral characteristics. Comparison
  of the two is a convenient but invalid argument.
  

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• 8) We Have the Chance to Stand Up for A Great
  Cause That Truly Matters.
• Protection of Marriage is the greatest civil
  rights movmement in America in 50 years, and like
  the civil rights movement for racial equality,
  many of its great leaders of religious leaders
  and men and women of faith.
• Pope Benedict has declared "The church cannot
  forsake announcing that, in accordance with the
  plans of God, marriage and the family are
  irreplaceable and do not allow for other
  alternatives."
• As President Hinckley wrote in 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.

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• 9) We can make a difference by our example.
• We can make a difference. President Monson said
• Too frequently, women under-estimate their
  influence for good. . . .
• Thomas S. Monson, Ensign, November 1997
• We are called to become as a city upon a hill
  which cannot be hid.
• David Ben Gurion Israel was to spread morality
  throughout the universe. It was to do so not by
  conquest but by example.
• My experience in Basic Training (boot camp) at
  Ft. Knox, KY in summer 1970.

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• 10) You Are Not Alone Be Of Good Cheer.
• In his book, Standing for Something, President
  Hinckley wrote
• The family is . . . the most fundamental and
  basic unit of society. And it deserves no, it
  demands our combined focus and attention.
• We go to great lengths to preserve historical
  buildings and sites in our cities. We need to
  apply the same fervor to preserving the most
  ancient and sacred of institutions the family.
• We cannot effect a turnaround in a day or a
  month or a year. But with enough effort, we can
  begin a turnaround within a generation, and
  accomplish wonders within two generations a
  period of time that is not very long in the
  history of humanity.
• -Gordon B. Hinckley, The Family, We Can Save Our
  Nation by Saving Our Homes in Standing for
  Something 143-45 (2000)
• Elie Wiesel, the Auschwitz survivor great Nobel
  Prize winner said
• I swore never to be silent . . . . We must take
  sides.
• One person of integrity can make a difference,
  a different of life and death.

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• BE OF GOOD CHEER!
• John 1633 In the world ye shall have
  tribulation but be of good cheer I have
  overcome the world.
• Acts 2720-25 Paul stood forth . . . and said .
  . .
• I exhort you to be of good cheer for there
  shall be no lost of any mans life . . . because
  last night an angel told me Fear not, Paul thou
  must be brought before Caesar and lo, God hath
  given thee all them that sail with thee.
• Wherefore, sirs, be of good cheer . . . .
• DWherefore be of good cheer and do not fear,
  for I the Lord am with you and will stand by you
  (DC 686), and Iwill lead you along, (DC
  7818), and Let thy heart be of good cheer . . .
  Contend thou . . . morning and night and day
  after day let thy warning voice go forth . . ..
  (DC 1124-5)

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May the Lord Bless You!!Thank You!!!
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