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What’s the Harm? Changes and Challenges in Family LawLesson #3: Marriage, Virtue, and the Foundation of American Constitutional Government by Lynn D. Wardle Bruce C. Hafen Professor of Law J. Reuben Clark Law School, Brigham Young University Presented at BYU Education Week, August 20, 2009
Welcome Thanks for coming (back) (How many 3d, 2d, 1st) Thanks to BYU Education Week for allowing this class Thanks to the room hosts! (Recommend Elder Packer’s keynote Devotional Address yesterday, 8/18, defend your families) Leave 5-10 mins Qs Resources: No handouts (BYU Ed Week policy) so take notes! 1) Marriage & Family Law Research Project website http://www.law2.byu.edu/organizations/marriage_family/index.php (symposia, presentations, draft papers, slides, links) 2) “What’s the Harm? Does legalizing same-sex marriage really harm individuals, families or society?” (Univ. Press Am. 2008) BYU Bookstore - Y • “Same-Sex Marriage: A Debate (Praeger 2003) BYU Bookstore – N, try Amazon.com
Lecture #3: Marriage, Virtue, and the Foundation of American Constitutional Government (Aug. 19, 2009) Outline: 1) Summary & review of status & recent developments Introduction to the origins & importance of the Constitution of the US Civic learning deficit in US colleges and college students The Founders, Virtue and Republican (Self-) Government Marriage, Families, and the Nurturing of Virtue What’s the Harm? (Beside that . . . .)
1) Summary of (/191) & States (/50) w/ SSM/CUs :A. Same-Sex Marriage/ Civil Unions LEGALIZED Same-Sex Marriage Legal: Seven(7)* Nations and Six (6) USA States: The Netherlands, Belgium, Canada, Spain, South Africa,* Norway & Sweden (US: MA, CN, IA, VT, ME & NH [CA-overturned, ME ‘people’s veto’ pending]) Same-Sex Unions Equivalent to Marriage Legal in Thirteen Nations and Five US States: Denmark, Norway, Sweden, Iceland, Finland, France, Germany, Luxembourg, Slovenia, South Africa*, Andorra, Switzerland, UK, New Zealand (US: CA, NJ, OR, WA, NV) (CUs replaced by SSM in VT, CN, NH) Global (US) Progress of Same-Sex Marriage, and Marriage Equivalent Civil Unions or Partnerships, 1985-2009
B. Same-Sex Marriage/Unions Prohibited Same-Sex Marriage Prohibited by law or appellate court decision in Forty-two States: (All but MA, CN, IA, VT, ME, NH, NM, RI & VT) Same-Sex Marriage Prohibited by State Constitutional Amendment in Thirty (30) States: (AK, AL, AR, AZ, CA, CO, FL, GA, HI, ID, KY, KS, LA MI, MS, MO, MN, NB, NV, ND, OH, OK, OR, SC, SD, TN, TX, UT, VI, & WI) Same-Sex Civil Unions Equivalent to Marriage Prohibited by State Constitution Amendment in Nineteen (19) USA States (AL, AR, FL, GA, ID, KS, KY, LA, MI, NB, ND, OH, OK, SC, SD, TX, UT, VI, WI) Thirty-seven (37) of 191 Sovereign Nations (19%) Have Constitutional ProvisionsDeclaring Marriage = Union of Man and Woman: (Armenia (art. 32), Azerbaijan (art. 34), Belarus (art. 32), Brazil (art. 226), Bulgaria (art. 46), Burkina Faso (art. 23), Cambodia (art. 45), Cameroon (art. 16), China (art. 49), Columbia (art. 42), Cuba (art. 43), Ecuador (art. 33), Eritrea (art. 22), Ethiopia (art. 34), Gambia (art. 27), Honduras (art. 112), Japan (art. 24), Latvia (art. 110 – Dec. 2005), Lithuania (art. 31), Malawi (art. 22), Moldova (art. 18), Serbia (art. 62), Somalia (art. 2.7), Suriname (art. 35), Swaziland Constitution (art. 27), Tajikistan (art. 33), Turkmenistan (art. 25), Uganda (art. 31), Ukraine (art. 51), Venezuela (art. 77), Vietnam (art. 64). See also Mongolia (art. 16), Hong Kong Bill of Rights of 1991 (art. 19). (E.g., Article 110 of the Constitution of Latvia now reads: “The State shall protect and support marriage—a union between a man and a woman,…”)
C. Adoption by Same-Sex Couples & Partners Status of Law in USA (August 19, 2009) re SSC/P Adoption 21 States and DC have statutes or appellate court rulings on whether same-sex couples/partners can adopt; seven other states have other legal developments that strongly suggest what the result will be; so in a total of 28 states + DC the issue is largely resolved. The issue is undecided in 22 states. Adoption by homosexual individual not barred per se in most states. Prohibited = 9 (AL, AR, FL, KY, MS, NE, OH, UT, WI) Probably Prohibited = 1 (OK) Total Prohibited or Probably Prohibited = 10 states Allowed = 13 (CA, CO, CN, DC, IL, IN, ME, MA, NH, NH, NY, PA & VT) Probably Allowed = 6 (IA, NC, NV, OR, TN, WA) Total Allowed or Probably Allowed = 18 states + DC (19) Undecided = 22 (AL, AZ, DE, GA, HI, ID, KS, LA, MD, MI, MN, MO, MN, NM, ND, RI, SC, SD, TX, VA, WV, WY) The policy varies according to which branch of government took the initiative. As of 2006: Status of Law re: SSC/P Adoption Globally / 191 Nations (Summer, 2007) SSC/P Adoption is explicitly allowed in 12 nations((Andora, Belgium, Denmark, Germany, Iceland, Israel, the Netherlands, Norway, Spain, South Africa, Sweden, and the United Kingdom)., and in parts of 3 other nations (federal) (AUS, CAN, US). It is not allowed or undecided in the remaining 176 nations.
2) Origins of the Constitution and of the ‘constitution’ of the U.S.
2) The Origins of the Constitution A. Not the most impressive constitution ... 1. Largely mechanical, structural , boundaries, separation of powers, etc. 2. Less eloquent, less complete than many other constitutions 3. Found wanting even before ratification . . . Bill of Rights 4. Less attention to/ protection for human rights than most constitutions
2) The Origins of the Constitution B. It is by far the oldest constitution still in use in the world ... 1. Constitution of the United States of American adopted 1787 2. Norway 2d oldest, adopted 1814 (27 years later) a) Constitutions Still in Effect (of 191 sov/226 nations): Pre-1900: 8 1900-1944: 56 1945-1969: 140 1970-1999: 16 Since 2000: 6 Total: 226 Source: CIA World Factbook, 2005 http://www.odci.gov/cia/publications/factbook/fields/2063.html (last visited August 2, 2005)
2) The Origins of the Constitution • “The most influential” constitution ever written. 1. Our leading export. Professor Albert Blaustein 2. Copied, imitated, plagiarized around the world. Imitation is sincerest form of flattery. 3. The Founders were trailblazers . . . . Columbus story
2) The Origins of the Constitution • It has been admired and respected by great statesmen Some of the greatest thinkers and do-ers in the field of government have expressed great admiration for the Constitution. Quotes: George Washington Thomas Jefferson John Adams William Gladstone Joseph Smith
2) The Origins of the Constitution • It works . . . . 1. Justice Anthony Kennedy • Will It Continue to Work? Will We Pass to Our Children the Constitution Intact? Will Future Generations of Americans Continue to Enjoy the Benefits of our Constitution? 1. It has been said that we come into possession ... 2. Do we remember what it took to establish and what it takes to maintain our Constitution?
3) Civic Education Deficit in US College Students & Colleges • 2005 Fall Survey of 14,000 freshmen & seniors at 50 US colleges & universities • Four areas: US history, politics, economy, US-&-world . • Findings: • 1) America’s colleges & universities fail to increase knowledge about US history & institutions (Srs av score only 53.2%, only 1.5% higher than frosh; at 16/50 schools Srs scored lower than Frosh – UMich-0.1, UChi, MIT, UVa, Geotwn, Yale-1.5, Duke, Brown, Cornell, UCBerkley, JohnsHopkins-7.3) Less than half knew “We hold these truths to be self-evident, that all men are created equal” was in the Declaration of Independence. • 2) Prestige doesn’t pay (1% > in civic knowl = 25 place < in USNWR school rank) • 3) Students don’t learn what colleges don’t teach (> courses = > knowl, > req’d courses, >> scores) • 4) Greater civic knowledge correlates with more active citizenship (voting, community service, political campaigns) • Source: Intercollegiate Studies Institute, The Coming Crisis in Citizenship, Higher Education’s Failure to Teach America’s History and Institutions (Sep. 26, 2006)
Continuing Failure of Civic Education • 2006 Fall Survey (2d) of 14,000 freshmen & seniors at 50 US universities (25 at random, 18 prestig repeats) 60 Qs in: US history, politics, economy, US-&-world . • Findings: (corroborate results of 2005 Survey) • 1) America’s colleges & universities fail to adequately improve civic knowledge. Srs av score only 54.2%, only 3.8% higher than frosh (50.4%). At 8/50 schools Srs scored lower than Frosh. e.g., UCBerkley-.76, Duke-2.25, Yale-3.09, Cornell-4.95. Foreign student Srs gain 0.1. • 2) K-12, students gain 2.3 pts civic knowl / yr; in college gain 1.3/yr. • 3) Prestige doesn’t pay; gen’ly, > USNWR rank = < rank in civic knowl (at 4 colleges in USNWR top 12, Srs score lower than Fr). Pub sch scored > Ivy League. • 4) Course offerings matter; student scores rise 1 pt / course taken. • 5) Greater civic knowledge gain in college correlates with more active citizenship (voting, community service, political campaigns) • 6) Higher quality family life (ps married & live tog (.7), educated (1 & .8), fam discusses politics 2.3), and English in home (1.8) = higher scores. • Source: Intercollegiate Studies Institute, Failing our Students, Failing America, Holding Colleges Accountable for Teaching America’s History and Institutions (Sep. 18, 2007)
4) Virtue, marriage, and the ‘constitution’ of the United States of America What is the ‘constitution’ of our nation? The Founders Considered Marriage and the Family the essential institutional cornerstones upon which the ‘superstructure’ of our Constitution and Laws rested. The importance of “hearths” and “altars”– Virtue, nurtured in families, was the intangible foundation substructure upon which the superstructure of constitutional rights and government was built.
Virtue & Our Constitutional Government “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 1 (1996)
Founders’ Quotes re Virtue and Republican (Self-) Government The Founders believed, with Benjamin Franklin, that “only a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters.” James Madison declared: “To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.” Samuel Adams believed that “neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt.”
Founder’s Quotes re: Virtue, cont’d George Washington 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)
Founder’s Quotes re: Virtue, cont’d John Adams wrote: “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?” -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)
Founder’s Quotes re: Virtue, cont’d Thomas Jefferson: “It is in the manners and spirit of a people which preserve a republic in vigour . . . degeneracy in these is a canker which soon eats into the heart of its laws and constitution.” -Notes on the State of Virginia, Query XIX (1787) “If the Wise by the happy man. . .he must be virtuous too; for, without virtue, happiness cannot be.” -Thomas Jefferson to Amos J. Cook, 1816. 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.
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)
Edmund Burke “Men are qualified for civil liberty in exact proportions to their disposition to put moral chains on their own appetites; in proportion as their love of justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the councils of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon the will and appetite be placed somewhere, and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things, that men of intemperate minds cannot be free. Their passions forge their fetters.” --Edmund Burke, A Letter to a Member of the National Assembly (1791) in The Works of Edmund Burke, vol. 4, pp. 51-52 (1866).
5) 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 care 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)
Marriage & Virtue, cont’d Historian Jan Lewis: “Revolutionary-era writers held up the loving partnership of man and wife in opposition to patriarchal dominion as the Republican model for social and political relationships.” Historian Linda Kerber: • “The Republican Mother’s life was dedicated to the service of civic virtue: she educated her sons for it, she condemned and corrected her husband’s lapses from it. If, according to. . . [one] commonly accepted claim, the stability of the nation rested on the persistence of virtue among its citizens, then the creation of virtuous citizens was dependent on the presence of wives and mothers who were well informed, ‘properly methodical,’ and free of ‘invidious and rancorous passions.’ . . . To that end the theorists created a mother who had a political purpose and argued that her domestic behavior had a direct political function in the Republic.” Historian Michael Grossberg: • “By charging homes with the vital responsibility of molding the private virtue necessary for republicanism to flourish, the new nation greatly enhanced the importance of women’s family duties. . . . At times ‘it even seemed as though republican theorists believed that the fate of the republic rested squarely, perhaps solely, on the shoulders of its womenfolk.’”
Liberty requires protection for the institutions that nurture & produce civic virtue. Virtue is generated and guarded first and foremost in the home. If that foundation slips, the government and the liberties it protects will not long survive. So ‘republican’ (Judeo-Christian, conjugal, life-long, monogamous) marriage must be protected. “I consider the domestic virtue of the Americans as the principal source of all their other qualities. . . . No government could be established on the same principle as that of the United States with a different code of morals. The American Constitution is remarkable for its simplicity; but it 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)
Marriage Is Not Merely A Private Matter We publiclycelebrate marriage to signify our entering into a public institution and our undertaking a public trust Marriage has profound social & political significance & consequence (IMAPP 2008 Study of costs of non-marriage and divorice) That is why all states regulates marriage – a pre-legal, pre-state relational institution That is why the state cannot ‘get out of the business of regulating marriage’ Marriage provides the foundation & generates the infrastructure of all liberal republican democracies, especially US constitutionalism (David Blankenhorn The Future of Marriage global studies correlate lack/support for family & SSM, CU, Trad-Marr)
6) What’s the Harm of SSM-CUs? • No easy sound-bite answer because neither immediate nor obvious • Harm of FLDS polygamous marriages with 14-year-olds? Or Fa-dau marriage? • Like effects of divorce on children (denied in 1960s and 1970s, now recognized) Transformation of the meaning, expectations, and practices of marriage generally. Distinguish public/private interests; private preferences and public consequences Recent report: costs of divorce & marriage-avoidance (cbow): $112 Billion public costs annually for USA ($70 B federal; $42 B state & local) $1.12 Trillion each decade Distinguish positivist construct / ubiquitous social institution Abe Lincoln’s story about the ‘leg.’ Men and women are still different, as is the union of a man and woman (marriage). Marriage is a critical status and concept used in 1,138 federal laws, unnumbered (even more) federal regulations, and hundreds of state laws in each state. Change the meaning of ‘marriage’ and it will change the application of thousands of federal and state laws
The sky hasn’t fallen!! Three flaws: 1) Shifts B/Proof 2) Diverts attention from long-term effects 3) Already many harms evident (in MA, Scandinavia, CAN, etc.) Family Friendly Policies: 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.”
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.
Bell & 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. • New study: modal range for number of sexual partners ever was 101-500” • -Kirk & Madsen “the cheating ratio of ‘married’ gay males, given enough time, approaches 100%.” • -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 for lesbian couples as it was for gay men couples. • -Swedish registered partnerships found that gay male couples were fifty percent more likely to divorce than married heterosexual couples, while lesbian couples were over 150 percent more likely to divorce than heterosexual couples
Study of Civil Unions in Vermont: marriage-like status did not significantly reduce lesbian and gay sexual irresponsibility. • Also, c. 50% more lesbians both in and not in Civil Unions in Vermont had decided that extra-relationship sex was acceptable than married women, and for gay men both in civil unions and not in civil unions it was from 1250% to 1400% higher than for men in conjugal marriages (40.3% and 49.5% compared to 3.5%). • -AIDS is estimated to have killed over 25 million people worldwide • - 15 common sexually related diseases besides HIV/AIDS • Thus, redefining marriage to include gay and lesbian couples will have a profound impact upon sexual morality and public health in society. Sexual standards in marriage will change as homosexual relations will be instantly normalized and equated with marital relations.
Same-sex marriage undermines parenting and child-rearing. • Legalizing same-sex marriage will instantly transform the meaning of marriage, spouse, husband, wife, parent, child. • All Children deserve the opportunity to be raised by a mom and dad. • Children are not stupid; they recognize deprivation. • Thus, the attempt to legalize same-sex marriage and to give equivalent legal status and benefits to same-sex couples constitutes a very real and dangerous attack upon the institution of conjugal marriage.
4. Legalizing Same-Sex Marriage Will Endanger Civil Rights • Legalizing same-sex marriage will undermine the civil rights of those who do not approve of or who oppose same-sex marriage. • - those who oppose same-sex marriage will be simply bigots. • - Opposition to same-sex marriage be “invidious discrimination” • -Changing the core definition of marriage in the law will lead to clashes between law and religion. • 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 • -
In California: • -a Protestant adoption agency was forced to provide adoption services to lesbian couples • -an online adoption agency was prohitted for db / Ca families • - suit (CA SCT decision this week) 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
California “Kristallnacht” The New Look of “Tolerance” in California
Posted 2 days after Prop 8 passedSource: http://yesproposition8.blogspot.com/2008/11/beauty-of-no-crowds-tolerance.html
http://www.meridianmagazine.com/familyleadernetwork/081114tolerance.html (Nov. 24, 2008)
