Virginia's and Florida's Democratic Marriage Referendums Declined Protection in Federal Court Rulings

Several states in the southeast section of the United States no longer have clear laws and regulations on marriage in light of a recent federal circuit ruling.  In separate actions, federal judges struck down constitutional marriage amendments in Virginia and Florida.  The result of these rulings is that marriage is being challenged in every State that has not already redefined it with marriage expansion for same-sex couples.

In the case of Bostic v. Schaefer, 2014 BL 207107, 4th Cir., No. 14-1167, a group of same-sex couples in Virginia filed suit in federal court to challenge Virginia's voter-approved constitutional amendment affirming marriage. Alliance Defending Freedom attorneys represent the State in that case, and the Prince William County Clerk of Court Michéle B. McQuigg, whom the district court allowed to intervene in defense of the State's marriage laws because she is tasked with issuing marriage licenses in that county.  A three judge panel of the Fourth Circuit decided on July 28, 2014 that Virginia's marriage law, which was approved by a 2006 amendment supported by 57% of Virginia voters as defining marriage as that legal relationship between one man and one woman violates the fundamental right to marry.   For more information on the defense of the case see www.ADFmedia.org. 

This federal ruling infringes on Virginia's state regulatory powers as outlined in "Marriage, State Domestic Relations Power, and Family Strength" at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2427462.  The Fourth Circuit,  nonetheless, becomes the second federal appellate court to strike down State marriage laws, following the Tenth Circuit's decisions invalidating similar laws in Utah and Oklahoma. 

In Florida, in a ruling released late on Friday, July 25, 2014, a Miami-Dade Circuit Judge declared Florida's marriage amendment unconstitutional.  That State's marriage law, passed in 2008 by 62 percent of Floridians, was effectively struck down by the ruling.  The opinion stated that the State law "serves only to hurt, to discriminate, to deprive same-sex couples and their families of equal dignity, to label and treat them as second-class citizens, and to deem them unworthy of participation in one of the fundamental institutions of our society."  State marriage laws, however, do not work to demean individuals, but to uphold and strengthen families.  The opinion cited the U.S. Supreme Court decision of Windsor v. U.S. from last summer that nullified a portion of the federal Defense of Marriage Act, but conceded that States should have the right to regulate marriage.  To learn more about that Supreme Court case read "Federalism or Extreme Makeover of State Domestic Regulations Power? The Rules and Rhetoric of Windsor (and Perry), at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093.  Indeed, these recent federal cases illustrate that the rhetoric in Windsor has now become the rule in Virginia and Florida.

Two very salient points were made by Fourth Circuit dissenting Judge Paul Niemeyer in the Bostic opinion in Virginia.  First, he pointed out that the majority failed to explain how their ruling would preclude a father marrying his daughter, or someone marrying multiple partners.  Secondly, his dissenting opinion argued that marriage regulation and definition should be left to the states, and not dictated by federal courts.  That position is clearly outlined in the twohttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2427462 articles http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093 referenced here in this post.  Niemeyer writes, "The U.S. Constitution does not, in my judgment, restrict the States' policy choices on this issue. If given the choice, some States will surely recognize same-sex marriage and some will surely not. But that is, to be sure, the beauty of federalism."  And federalism is explained and applied to marriage in the piece at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093.   

Family restoration is not buttressed by further expansion of marriage by federal power because that effort steals and destroys State authority to strengthen marriage, while simultaneously deconstructing marriage as a cornerstone institution of any strong society.  Indeed, federal expansion of marriage weakens States, families, and communities.  Same-sex marriage expansion is the proliferation of domestic partnerships by federal fiat.  So "How Will the Proliferation of Domestic Partnerships Affect Marriage"?  Those answers can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=269418.

Marriage Rules or Rhetoric? Extreme Makeover Style

So much has happened in marriage litigation and policy-making over the past few months, that an average American may be wondering if there's been an "Extreme Makeover" of sorts in family law in the United States.  State authority to regulation domestic relations, an area of law traditionally held by the states, may seem clouded and unclear in light of federal judicial intervention.  When a federal court declared unconstitutional the state of Utah's voter-approved definition of marriage, that state decided to go directly to the U.S. Supreme Court in an effort to protect its regulation of marriage.  This according to a recent account by the National Law Journal which writes:
"Kitchen v. Herbert would be the first same-sex marriage case to reach the high court since its June 2013 decision in United States v. Windsor, invalidating the definition of marriage as between a man and a woman under the federal Defense of Marriage Act.  A divided three-judge panel of the U.S. Court of Appeals for the Tenth Circuit on June 25 held that the Utah ban was unconstitutional. That ruling left the state with the option of seeking review by the full Tenth Circuit or filing a petition for review with the Supreme Court.  Utah Attorney General Sean Reyes announced on Wednesday that he would seek the high court's review. ...The Tenth Circuit was the first appellate court to rule on the constitutionality of a same-sex marriage ban. A decision by the Fourth Circuit in two challenges to Virginia's laws is expected soon. ...The justices have the option of declining to hear the Utah petition. If they do grant review, arguments likely would occur in 2015."

The need for this litigation was not unforeseen.  In our recent article (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093) published by the Elon Law Review, Elizabeth Oklevitch and I suggested that the rhetoric in Windsor would lead to state challenges such as those faced by Utah, and Virginia (another state challenge we have discussed at FamilyRestoration), in "Federalism or Extreme Makeover of State Domestic Regulations Power? The Rules and Rhetoric of Windsor (and Perry)," available for download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093. These Supreme Court Opinions express an affirmation (at least rhetorically) of the right of states to regulate family law - yet also ruled to uphold same-sex marriage policy in one case (Windsor) while not even allowing a hearing on the voter-approved state policy upholding marriage in the other (Perry).  We suggest this incongruity in jurisprudence represents a sort of extreme makeover of state domestic regulations law.

In light of this apparent contradiction, this article considers whether "the traditional power of States to define domestic relations" is affected by the mandate that the federal government refrain from intervening in marriage entry regulation when one state's ability to define marriage was effectively denied in Perry. An overview of some collateral effects of both the rules and rhetoric of Windsor (and Perry) on state family law regulation illuminates this question. Such an overview reveals that these cases do more than simply uphold and clarify federalism; at least to some extent, they impede the ability of states to define domestic relations, with practical and ideological ramifications for family law and liberty interests. Part I provides a background on the dicta of Windsor heralding state regulation of marriage. Part II considers and examines collateral effects of Windsor (and Perry) on family law in three categories. Those categories include federal conflicts with state regulations, interstate conflicts, and family law policy. Part III discusses an ideological shift Windsor (and Perry) promote in family law and the effects of the Supreme Court's endorsement of this new ideology upon personal liberty interests and marriage regulation.  Read it at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093.

While the rules stated by the Supreme Court uphold state's rights to stabilize and restore family law policy in marriage, the rhetoric works to deconstruct state regulation of family law.  Utah is challenging that outcome, asking the High Court to reconsider it's rhetoric and rules in 2015.  Marriage rules and rhetoric greatly matter to family restoration.

Rethinking Mom and Dad in Family Restoration

If you are ready for football season to begin, you'll be ready to read about some NFL players and their dads and moms in "Rethinking Mom and Dad," published at 42 Capital U. L. Rev. 441 (2014), and available for free download at the Social Science Research Network at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462112, discussing the latest research and evidence on parenting patterns. 

 

Some recent studies have claimed to demonstrate that children do just as well without a dad - or without a mom.  For example, a new study from the University of Melbourne in Australia on how kids from same-sex homes fare is getting a good deal of press. Perhaps you’ve seen the news stories and wondered if this changes the nature of the debate over the importance of the family? Let's consider the research. 

Reporting on this study the Washington Post stated that children from same sex parent families scored 6% higher on general health and family cohesion even when controlling for socio-demographic factors such as parents' education and household income.  But researcher and commentator John Stonestreet noted that sketchy methodology led to a serious research bias that flaws the outcomes.  You can read his ideas in their entirety at BreakPoint at http://www.breakpoint.org/bpcommentaries/entry/13/25700?spMailingID=9041076&spUserID=ODk4MzEzMDgyMDcS1&spJobID=341404420&spReportId=MzQxNDA0NDIwS0. 

Family researcher Glenn Stanton, Focus on the Family’s director of Family Formation Studies, also discussed this study at http://jimdaly.focusonthefamily.com/does-new-research-prove-kids-do-better-with-two-moms/?utm_source=nl_dalyfocus&utm_medium=email&utm_campaign=186015&refcd=186015&crmlink=content-keep-reading.  He states that this new study gives the same kind of findings seen before, coming from the same kinds of studies with the same kinds of serious short-comings and method problems. You can read about the weaknesses of those previous studies here, here and here. The bottom line is that this Australian study and each study on same-sex or single-sex parenting are all derived from a sample size that is too small to render any actual evidence or generalizations, each study represents the answers and views of self-selected participants, and possesses conflict of interest elements because participants are interested in a positive outcome.

A most serious flaw of this and other studies is a general lack of normative control group utilization.  What this means is that this study and others like it tell us nothing about how kids in same-sex homes fare compared to children being raised by their married mother and father. It does not in any manner address that significant difference.  That is why "Rethinking Mom and Dad" at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462112 is so important for general knowledge on this issue.  And with football just around on the seasonal corner, it's a fun read as well.

Another family expert, Economist Dr. Douglas Allen at the Simon Fraser University in Canada, studies family makeup and its impact on children, the economy and culture.  His most recent work included a replication of a study that claimed children in same-sex households fared no differently than those raised in homes with a married mother and father.  After making several corrections in methodology, Allen and his team discovered an interesting maxim. "Gender composition matters a lot in a household... Moms probably do something that's a lot different than dads.  If you're a child there are times in your life when you really need a mom's input, and there are other times you need a dad's input; and those times are probably different for boys and for girls."  Read more on Dr. Allen’s work at CitizenLink at http://www.citizenlink.com/2014/05/12/family-experts-children-do-best-when-raised-by-their-married-mom-and-dad/.

 

Rethinking Mom and Dad toward family restoration requires a focus on the children as well as on the parenting formation.  (See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462112.)

Family restoration happens when children have an opportunity to be raised by their mom and dad who are married to each other.  

You can access all my work on the Social Science Research Network (SSRN) at http://ssrn.com/author=183817 – while you, like me, get ready for football season!

Family Restoration & Regent Library Book Club

From Guest-Bloggers Dean Sara Baron & Associate Librarian Harold Henkel, Regent University Library:

A study of reading habits from 2003 revealed startling statistics. One-third of high school graduates never read another book after high school; 42% of college graduates never read another book after college. It is no surprise that organized book clubs, such as Oprah’s Book Club, have grown so rapidly in the time since this data was gathered. The Library Book Club at Regent University was founded in 2008 to encourage reading literature for pleasure. In our seven years, we have read many classic and modern works portraying many different kinds of families, including Pride and Prejudice, Jane Eyre, Tevya the Dairyman, and And the Mountains Echoed. 

This summer, the Book Club read To Kill a Mockingbird, by Harper Lee. First published in 1960, Lee’s only novel was a cultural shock to America for its discussion of sensitive issues of race, violence, and justice, but it soon became a classic in American literature for how it innocently approached these sensitive subjects. 

It is also a picture of family life on many levels and in many fashions. Atticus Finch, a single father dealing with the early death of his wife and with a rising career in law and politics, is “doing the best he could do” with two precocious children. The children learn about sensitive issues that surround families in the small Alabama community and approach each with child-like innocence. A good family read since its publication, To Kill a Mockingbird continues to have lessons for contemporary readers about community, parenting, and family restoration. 

One of the most famous openings in literature is the beginning of Anna Karenina: “All happy families are alike; each unhappy family is unhappy in its own way.” Owing to the reputation of Anna Karenina, readers have tended to accept Tolstoy’s claim as a nugget of aphoristic wisdom. According to essayist David P. Goldman, however, Tolstoy got it exactly backwards: “…unhappy families are all unhappy in the same way. It is happy families that are different, because every child is radically unique, such that raising children is the one human activity that is sure to surprise.”

Goldman’s riposte to Tolstoy illustrates why it is essential that we read literature throughout our lives: to gain a new perspective, to see the world through other people’s eyes, and to “converse” with the great authors through engagement with their works. The Library Book Club invites readers of Family Restoration to join us in our eighth year as we explore together ten great classic and modern novels. A complete schedule for 2014-2015 will be posted soon on the Book Club website.      

Family restoration happens one family at a time.