Full Faith and Republican Guarantees: Gay Marriage, FMPA, and the Courts

1. Full Faith and Republican Guarantees: Gay Marriage, FMPA, and the Courts By John C. Eastman Professor of Law Chapman University School of Law Symposium on a Federal Marriage Protection Amendment J. Reuben Clark Law School Brigham Young University Provo, Utah September 9, 2005

2. The Old Law • Murphy v. Ramsey (U.S. 1885) "For, certainly, no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, … 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 guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement."

3. Recent Cases • Lawrence v. Texas (U.S. 2003) • No “rational basis” for anti-sodomy laws • Justice Kennedy specifically stated that it applied only to actions by consulting adults in the privacy of their own home, but was it? • Kansas statutory rape case decided next day • Goodridge v. Massachusetts (Mass. 2003) • San Francisco marriages • Utah polygamy case • Colorado custody case

4. Before Goodridge

5. Massachusetts Marriage Laws • Chapter 207, Section 1 Marriage of man to certain relatives • No man shall marry his mother, grandmother, daughter, granddaughter, sister, step-mother, grandfather's wife, grandson's wife, wife's mother, wife's grandmother, wife's daughter, wife's granddaughter, brother's daughter, sister's daughter, father's sister or mother's sister. • Chapter 207: Section 2 Marriage of woman to certain relatives • No woman shall marry her father, grandfather, son, grandson, brother, stepfather, grandmother's husband, daughter's husband, granddaughter's husband, husband's grandfather, husband's son, husband's grandson, brother's son, sister's son, father's brother or mother's brother.

7. Holding of Goodridge

8. Seems simple enough …

9. But add in Massachusetts statutory prohibitions on incest, etc., which by their terms apply only to opposition sex relationships, and you get …

10. Then consider, if a brother can marry his brother, why not his sister? And even the existing prohibitions will fall …

11. … to Chaos From order ... And the Massachusetts Court could find no rational basis for limiting marriage to 1 man and 1 woman, even “with respect to child rearing”!

12. Where Does It End? • San Francisco Chronicle, April 2004 • “Polyamorists say they related honestly to multiple partners” • "I wear a wedding ring for my husband," she explained, "and a bracelet for Conly." • “Though Amsbury and her husband, Terrance Roff, did not involve Peter and Conly in their Alameda marriage ceremony, other polyamorous Unitarians have proposed church ceremonies to bless threesomes, foursomes or moresomes.” • Reuters, March 2004 • Dutch prosecutor declined to prosecute a man engaged in bestiality, claiming that there was no law against it. • Those who called for adoption of a new law banning bestiality did not contend that it was immoral, but that • “Sex with an animal is a far-reaching infringement of its physical integrity and the animal can never consent to it. “

13. Here is one solution… • Marriage licenses should be like fishing licenses. • You want resident or visitor? Salt water, fresh, or both? Just for the weekend, 30-days, all year? Lifetime? Wow; brave soul! • Cotton to your brother or sister? Try the salmon stamp. Endangered species. • Hey you, Oedipus! Try the Matriarch Special? Only fourteen dollars extra! • Same-sex? You’ve got a choice of a pink or a blue stamp. • Plural marriage? Now you’re really talkin’! How many stamps you want? • These are good only in California, of course. No Full Faith and Credit or Supremacy problems here. • You want the Traditional Nationwide-Worldwide Special? We have a deal on that, this week only. • Proceeds from all stamps go to the Marriage Rights Litigation Fund. • Wear your license on the front of your jacket or hat where it can be seen by the Warden at all times, and remember, anything too young has to be thrown back!

14. Let Me Suggest Two Others Aimed at Judicial Tyranny Problem Revival of Impeachment Option Republican Guaranty Claims

15. How does the FMPA Further These? • Pre-empts a U.S. Supreme Court decision judicially imposing “gay marriage” “Marriage in the United States shall consist only of the union of a man and a woman.” • Bars activist state courts from doing the same at the state level. “Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.”

16. What the FMPA DOES NOT do. • Does not prevent State Legislatures from conferring, for purposes of state law, actual marriage or the benefits of marriage on same-sex relationships if, in the legislature’s judgment, such benefits advance the health, safety, welfare and morals of the people. • In other words, the FMPA is pro-federalism, under a proper understanding of federalism that rights are reserved to the states or to the people. • Massive policy changes cannot be compelled by the unelected courts

17. Other Advantages of the FMPA Approach • Not a Fundamental Right to Marry Whomever, or Whom-so-ever-many (or Whatever?) you want • So no slippery slope into claims of “right” to “polyamory” or other deviant sexual practices • Restoration of the people’s primary role in determining questions of public policy. • In other Words, FMPA advances the rights guaranteed to the people under the Republican Guaranty Clause.