State of Affairs in Family Law & How Regent Alumni are Helping the Landscape

This past weekend I had the honor of addressing the First National Family Law Center’s Symposium at the University of Richmond, T.C. Williams School of Law. The focus for the conference embodied the State of the Family 2007. My talk in particular centered on marriage, civil unions and other same-sex relationship recognition. My presentation took a factual direction, while my counterpart, Dale Carpenter from the University of Minnesota Law School, responded with arguments favoring same sex relationship recognition based on the pragmatic theories of Edmund Burke. It was an excellent conference.
Law and social policies that impact families and their children affect the future of every society. The conference material set forth the legal landscape and analyzed the current state of the family in light of same sex partnerships recognized as marriage or marriage-like in law and policy.
The only U.S. state that recognizes same-sex marriage is Massachusetts, based on Goodridge v. Dept. of Pub. Health, 440 Mass. 309 (2003), and codified at M.G.L.A. 4 §1. Such a legal move generally indicates expansion of sexual freedoms and confers benefits to a greater array of marriage-like alternatives. In the several years since this decision, no other state in America has moved this far in the direction of marriage alternatives, despite a mountain of hopeful media coverage in that vein.
Very few nations have likewise moved in this direction (Canada via Halpern v. Toronto, 172 O.A.C. 276 (2003); the Netherlands 2000, Belgium 2003 and Spain 2007), but most European nations are pursuing a form of civil unions. Four American states have joined that movement and recognized a form of same sex relationships in civil unions: Vermont, via Baker v. Vermont, 170 Vt. 194 (1999), and codified at Vt. Stat. Ann. tit. 15 §5; Connecticut with C. G. S. A. §46B-33aa-pp, ch. 815f; New Hampshire with N.H. Stat. Ann. ch. 457-A; and New Jersey via Lewis v. Harris, 188 N.J. 415 (2006) and codified at N.J. S. A. 37:1-28.
These laws have ironically revealed a decline in couples taking advantage of same-sex marriage-like benefits. (See Tina Kelley, Couples Not Rushing to Civil Unions in New Jersey, New York Times, Mar. 21, 2007, at B1.) In fact, less than 300 couples have applied for civil union licenses in New Jersey since they became available in 2006, which experts say represents less than one percent of the same sex population in that state, arguing that civil unions fall short of marriage, and do not offer the same benefits and status to same-sex couples that marriage does. (See Andrea Stone, Some say civil unions dropping off: Gay activists say more same-sex couples waiting for marriage, U.S.A. Today, Apr. 20, 2007, at 3A.) Yet, that is the very remedy Professor Carpenter presented at the conference in favor of same sex relationship recognition – one that homosexual activists themselves reject for the most part.
While support for civil unions is waning even among proponents, the state of Marriage, on the other hand, is gaining strength and momentum in the U.S. and around the globe. A flood of 27 states have moved away from same-sex unions via a state constitutional amendment that would bind a judge on marriage. The torrent of ballot initiatives that flooded state legislatures in the past two years favoring same sex unions is slowing to a trickle, and after the 2008 elections 11 more states will uphold marriage as between one man and one woman. (For further information see Marriage Amendment Summary, DOMA Watch, April 10, 2006, available at http://www.domawatch.org/amendments/amendmentsummary.html.)
Add to these (potentially) 38 states that are protecting marriage in their state constitutions three key states that have judicially upheld marriage: Washington in Anderson v. King County, 138 P.3d 963 (Wash. 2006), New York in Hernandez v. Robles, 7 N.Y. 3d 338 (2006) and most recently, Maryland in Conaway v. Deane, No. 44, Sept. Term 2006. In each instance, the respective high courts upheld the state’s legitimate interest in limiting marriage to a man and a woman on the rational basis or legitimate interest test, linking marriage to child rearing as the important state interest. Last week Conaway went a step further, however, and also stated unequivocally that “there is no fundamental right to marry a person of your own sex, and that limiting marriage in this way does not discriminate on the basis of gender.”
Regent Law students generally learn their state family law code while in law school, which has resulted in a great wealth of attorneys who understand not only how to defend marriage for the good of society, but how important public policy on marriage is to the welfare of their state.
For example, in Washington and New York, Regent alumni authored the briefs and presented the arguments that persuaded results favoring marriage in those cases. In Arkansas and many other states, Regent alums helped to author constitutional amendments and worked toward their passage. Lawyers who studied at Regent University are making a very positive difference in policy making on marriage around the country, and maybe on the world. One long time NPR journalist suggests that the marriage amendment movement could be an indicator of the changing legal landscape favoring marriage over homosexual rights in marriage-like relationships. See Barbara Begley Haggerty, Gay-Marriage Advocates Switch Tactics, National Public Radio, April 19, 2007, available at http://www.npr.org/templates/story/story.php?storyId=9529479.
“Now, gay marriage advocates face the possibility of victory in only a handful of state courts. Even states targeted as open to gay marriage – such as New York and Washington State — upheld laws defining marriage as between a man and a woman.”