Marriage, Democracy and Family Restoration

This week’s elections have revealed a bright disposition from Virginia to New Jersey to Maine – hope that is needed for a both a healthy economy and strong families.

Bob McDonnell, Virginia’s governor elect, and Chris Christie, New Jersey’s governor elect, have both been strong on family principles and the importance of marriage. With Maine’s vote for marriage 31 states have now directed their judiciaries and their elected representatives to affirm marriage. See "A Setback in Maine for Gay Marriage, but Medical Marijuana Law Expands" and "Gay Rights Rebuke May Change Approach " articles.

When the public votes on marriage, the self-governing process proclaims a resonating message: Marriage is between one man and one woman. When the legal elite determine to expand marriage, as in Massachusetts, Vermont, New Hampshire, Connecticut and Iowa, those cases appear to be in opposition to the democratic process.  Courts often do play the role of protecting minority rights from majority rule, yet the scope of that protection, however, is narrowly defined and limited to certain parameters that have been found to be constitutionally fundamental rights.  Marriage between one man and one woman who are unrelated and of suitable age is constitutionally protected, and now guaranteed in 31 states.  Court rulings that seem to claim superiority over the people, attempting to void the democratic mandate, actually exceed those constitutional limitations. Such case law reflects neither the United States Constitution, nor the common sense will of the people, but the superiority of the legal elite.

This seems equally apparent in legal scholarship, as law journal publications reveal a legal academy aversion to an authentic debate, with a ratio of nearly 5-1 articles in favor of altering marriage.[1]  Furthermore, rather than clearly stating the merits of the legal arguments in the marriage debate, legal scholarship has become saturated in emotion.  A recent article by veteran family law professor Lynn D. Wardle entitled “All you need is love,”[2] notes a recent renaissance of emotional recognition by legal scholars, especially in judging, practicing and teaching family law.  Professor Wardle identifies this emotional outpouring by legal scholars and reminds that the law has never dealt with marriage as a matter of love. It is not because people are in love that the state takes an interest in who marries.  It is not out of fairness in sexuality that the state takes an interest in who marries.  The state is interested in protecting marriage because of its procreative civilization perpetuating nature, which is the foundation of the state itself.  This leads to family restoration.

The stability of the institution of marriage as a cooperative enterprise benefits society by perpetuating society.  Marriage and the family that results from its procreative capacity provide a nourishing institution for future citizens.  The state is thus simultaneously relieved of and perpetuated by that personal responsibility inherent in marriage that is procreative in nature. The fact that these matters are clear to most people is evident in the democratic process.  If  legal elites ignore what is happening all over the country by our democratic process in the debate on marriage, we face irrelevancy.

Polls have shown that the more Americans learn about the implications of same-sex partnerships, the less they support associating them with marriage.  A recent Gallup/CNN/USA Today poll showed that 68 percent of Americans oppose same-sex partnerships that are characterized as marriage – the highest level in four years.   Three out of five respondents said they would support a federal marriage amendment, and this is confirmed by an ABC/Washington Post poll as well.[3] Our democratic process seems at odds with the legal elite.  Endangerment by an ivory tower without windows to the rest of the world could lead to isolation from the populace.  Scholars may face irrelevancy, or even insignificance in the culture of marriage.

Rather, this week’s elections have revealed a bright disposition for family restoration – something many are very much looking forward to!  

******************************

[1] As set out in the annual survey of family law literature published in 2003, 46 articles argue to alter marriage in favor of same sex partnerships, while 11 articles make arguments in favor of marriage defined as between one man and one woman (including same sex parents), yielding a ratio of 4.6 to 1.1 (or rounded 5-1).  Paul M. Kurtz, Annual Survey of Periodic Literature, 36 Fam. L. Q. 775 (Winter 2003).  This is a compilation of articles published prior to the 2004 elections, and yet the voting numbers are directly opposite what was espoused by the majority of the legal academy reflected in these articles.  At least one symposium was directed entirely at altering marriage, with no dissenting articles (e.g. Symposium on Same-Sex Marriage, Civil Unions, and Domestic Partnerships, 30 Cap. U.L.Rev. 221 (2002). Other symposia posed the question in a debate form, but only had one article upholding marriage, with all (or nearly all) the rest devoted to arguing to alter marriage (e.g. Same-Sex Marriage: The Debate in Hawaii and the Nation, 22 U. Hawaii L. Rev. 1 (2000); Arranging Marriage: A Place for Policy? 9 Va. J. Soc. Pol’y L. 1 (2001)).

The 46 articles arguing to alter marriage (or to do so via parenting) include: Larry Cata Backer, Religions as the Language of Discourse of Same Sex Marriage, 30 Cap.U.L.Rev. 221 (2002)(arguing for religious support of same-sex marriage); David B. Cruz, The New “Marital Property”: Civil Marriage and the Right to Exclude? 30 Cap.U.L.Rev. 279 (2002)(argues for altering marriage with the “exclusionary” rationale); Greg Johnson, In Praise of Civil Unions 30 Cap.U.L.Rev. 315 (2002)(asserts civil unions are legal equivalent to marriage and deserve interstate recognition); Arthur S. Leonard, Ten Propositions About Legal Recognition of Same-Sex partners, 30 Cap.U.L.Rev. 363 (2002)(argues from equality to alter marriage); Mark Strasser, Some Observations about DOMA, Marriages, Civil Unions, and Domestic Partnerships, 30 Cap.U.L.Rev. 363 (2002)(argues for altering marriage to same-sex marriage); Patricia A. Cain, Federal Tax Consequences of Civil Unions, 30 Cap.U.L.Rev. 387 (2002)(argues for IRS treatment of civil unions as marriage); Susan J. Becker, Second-Parent Adoption by Same-Sex Couples in Ohio: Unsettled and Unsettling Law, 48 Clev. St. L. Rev. 101 (2000)(arguing for treatment of same-sex parents as marital partners); Casenotes, Constitutional Law – Equal Protection and Due Process – Statutory Classifications based on sexuality – Florida District Court Upholds the Constitutionality of Statute that Prohibits Homosexuals From Adopting, Lofton v. Kearny, 115 Harv. L. Rev. 1259 (2002)(describing unequal treatment of homosexuals as unmarried); Timothy P. F. Crowley, The United States District Court for the Southern District of Florida Holds Florida’s Statutory Ban on Gay Adoption is Not Offensive to the Constitution, 11 Law & Sexuality 253 (2002)(criticizing ruling against homosexual parents as improper animus); Amy Joy Galatis, Can We Have a “Happy Family”? Adoption by Same-Sex Parents in Massachusetts, 6 Suffolk J. Trial & App. Advoc. 7 (2001)(proposes legalization of same-sex marriage as remedy to problem); Lino A. Graglia, Single-Sex “Marriage”: The Role of Courts 2001 B.Y.U.L. Rev. 1013 (arguing to alter marriage); Terry S. Kogan, Competing Approaches to Same-Sex Versus Opposite-Sex, Unmarried Couples in Domestic Partnership Laws and Ordinances, 2001 B.Y.U.L. Rev. 1023 (arguing marriage alteration solves inequality with domestic partnerships); Mark Strasser, A Small Step Forward: The ALI Domestic Partners Recommendation, 2001 B.Y.U.L. Rev. 1135 (arguing ALI recommendations are a positive step toward same- sex marriage); Jeffrey G. Sherman, Domestic Partnership and ERISA Preemption, 76 Tul. L. Rev. 373 (2001)(encouraging local recognition of gay marriage); Vicki L. Armstrong, Welcome to the 21^st Century and the Legalization of Same-Sex Unions, 18 T.M. Cooley L. Rev. 85 (2001)(arguing to alter marriage); Elaine M. DeFranco, Choice of Law: Will A Wisconsin Court Recognize a Vermont Civil Union,” 85 Marq. L. Rev. 251 (2001)(arguing to alter marriage); Katie Eyer, Related Within the Second Degree? Burns v. Burns and the Potential Benefits of Civil Union Status, 20 Yale L. & Pol’y Rev. 297 (2002) (arguing to alter marriage); Joseph M. Manicki, S.D.Myers v. San Francisco: Satisfactory C’s on the Domestic Partnership Benefits Report Card – The Constitutionality of Contingent City Contracts Under the Commerce Clause, 11 Law & Sexuality 2443 (2002)(argues to alter marriage); Emily Taylor, Across the Board: The Dismantling of Marriage in Favor of Universal Civil Union Laws, 28 Ohio N.U.L.Rev. 171 (2001)(arguing to alter marriage); Robert F. Williams, Old Constitution and New Issues: National Lessons From Vermont’s State Constitutional Case on Marriage of Same-Sex Couples, 43 B.C. L. Rev. 73 (2001)(argues to alter marriage); Richard F. Storrow, The Policy of Family Privacy: Uncovering the Bias in Favor of Nuclear Families in American Constitutional Law and Policy Reform, 66 Mo. L. Rev. 527 (2001)(arguing to alter marriage); Angie Smolka, That’s the Ticket: A New Way of Defining Family, 10 Cornell J.L.& Pub. Pol’y 629 (2001)(expresses hope that marriage will be altered to change traditional views); Claudina Richards, The Legal Recognition of Same-Sex Couples – The French Perspective, 51 Int’l & Comp. L. Q. 305 (2002)(argues for same-sex marriage formalization); Marilyn Sanchez-Osorio, The Road to Recognition and Application of the Fundamental Constitutional Right to Marry of Sexual Minorities in the United States, the Netherlands and Hungary: A Comparative Legal Study, 8 ILSA J. Int’l & Comp. L. 131 (2001)(using international comparisons to argue for same-sex marriage); Cynthia J. Sgalia McClure, A Case for Same-Sex Marriage: A Look at Changes Around the Globe and in the United States, Including Baker v. Vermont, 29 Cap. U.L. Rev. 783 (2002)(urging recognition of same-sex marriage); Barbara Stark, Marriage Proposals: From One-Size-Fits-All to Postmodern Marriage Law, 89 Cal. L. Rev. 1479 (2001)(argues for altering marriage due to disparity between law and reality); Robert E. Emery, Promoting Pluralistic Marriage Positively, 9 Va. J. Soc. Pol’y & L. 153 (2001)(argues people are altering marriage by their behavior); Martha Albert Fineman, Why Marriage? 9 Va. J. Soc. Pol’y & L. 239 (2001)(argues for marriage alteration);  Michael S. Wald, Same-Sex Couple Marriage: A Family Policy Perspective, 9 Va. J. Soc. Pol’y & L. 291 (2001)(asserts state has an interest in recognizing same-sex marriages); Charlotte Patterson, Same-Sex Marriage and the Interests of Children: Comments on Michael Wald’s Same-Sex Marriage: A Family Policy Perspective, 9 Va. J. Soc. Pol’y & L. 345 (2001)(argues for allowing same-sex marriage as it would be in best interest of relationship’s children); Laurence Drew Borten, Sex, Procreation , and the State Interest in Marriage, 102 Colum. L. Rev. 1089 (2002)(argues for redefinition of marriage); Kevin Tallant, My “Dude Looks Like a Lady”: The Constitutional Void of Transsexual Marriage, 36 Ga. L. Rev. 635 (2002)(advocates altering marriage to accommodate transsexuals); Mark Strasser, When is a Parent Not a Parent? On DOMA, Civil Unions, and Presumptions of Parenthood, 23 Cardozo L. Rev. 299 (2001)(argues for recognition of second parent adoptions in all states and advocates altering marriage accordingly); Richard F. Storrow, Parenthood by Pure Intention: Assisted Reproduction ad the Functional Approach to Parentage, 53 Hastings L.J. 597 (2002)(argues for extending parenthood rights to non-married couples to assist in redefining marriage and family); Sidney Buchanan, A Constitutional Crossroad for Gay Rights, 38 Hous. L. Rev. 1269 (2001)(argues marriage is fundamentally unfair because it does not provide legal treatment of gay rights); Nancy J. Knauer, The September 11 Attacks and Surviving Same-Sex Partners: Defining Family Through Tragedy, 75 Temp. L. Rev. 31 (2002)(argues for greater acceptance of same-sex relationships as marriage-like); Patricia A. Cain, Dependency, Taxes, and Alternative Families, 5 J. Gender Race & Just. 267 (2002)(argues for altering marriage or tax policies or both); Mark Strasser, The Future of Same-Sex Marriage, 22 U. Hawaii L. Rev. 119 (2000)(arguing that constitutional amendments to protect marriage are unconstitutional); Brad K. Gushiken, The Fine Line Between Love and the Law: Hawaii’s Attempt to Resolve the Same-Sex Marriage Issue 22 U. Hawaii L. Rev. 149 (2000)(arguing that protecting marriage is unconstitutional); Brett P. Ryan, Love and Let Love: Same-Sex Marriage, Past, Present, and Future, and the Constitutionality of DOMA, 22 U. Hawaii L. Rev. 185 (2000)(arguing against laws that protect marriage); Jeffrey Hubins, Proposition 22: Veiled Discrimination or Sound Constitutional Law? 23 Whittier L. Rev. 239 (2001)(arguing that limiting marriage to one man and one woman is “anti-gay animus”); Andrew Koppelman, Defending the Sex Discrimination Argument for Lesbian and Gay Rights: A Reply to Edward Stein, 49 U.C.L.A. L. Rev. 519 (2001)(includes marriage as sexually discriminatory); Darren Bush, Moving to the Left by Moving to the Right: A Law and Economics Defense of Same-Sex Marriage, 22 Women’s Rts. L. Rep. 115 (2001)(argues that law and economics theory should welcome same-sex marriage as more efficient than marriage); James Donovan, Rock-Salting the Slippery Slope: Why Same-Sex Marriage is Not a Commitment to Polygamous Marriage, 29 N. Ky. L Rev. 521 (2002)(argues for altering marriage toward same-sex marriage as based on romantic love but not toward polygamy as based on community values); Josephine Ross, The Sexualization of Difference: A Comparison of Mixed-Race and Same-Gender Marriage, 37 Harv. C.R.-Cl.L. Rev. 255 (2002)((argues to alter marriage based on same rational as miscegenation law abolition); Mark Strasser, Toleration, Approval, and the Right to Marry: On Constitutional Limitations and Preferential Treatment, 35 Loy. L.A.L.Rev. 65 (2001)(arguing that same-sex unions be constitutionally rather than legislatively recognized).

The 11 articles in support of marriage include: William C. Duncan, Domestic Partnership Laws in the United States: A Review and Critique, 2001 B.Y.U. L. Rev. 961 (2003)(arguing not to alter marriage even via domestic partnerships); Lynn D. Wardle, Deconstructing Family, A Critique of the American Law Institute’s “Domestic Partners” Proposal, 2001 B.Y.U. L. Rev. 1189 (upholding status of marriage); Margaret F. Brinig, Domestic Partnership: Missing the Target? 4 J.L. & Fam. Stud. 19 (2002)(arguing to uphold marriage rather than cohabitation); David Orgon Coolidge, Widening the Lens: Chapter 6 of the ALI  Principles, Hawaii and Vermont, 4 J.L. & Fam. Stud. 79 (2002)(recognizing marriage as “organizing principle of family law); Lynne Marie Kohm, How Will the Proliferation and Recognition of Domestic Partnerships Affect Marriage? 4 J.L. & Fam. Stud. 105(2002)(upholding marriage); Lynne Marie Kohm and Mark A. Yarhouse, Fairness, Accuracy, and Honesty in Discussing Homosexuality and Marriage, 14 Regent U. L. Rev. 249 (2002)(upholding marriage); Dale M. Schowengerdt, Defending Marriage: A Litigation Strategy to Oppose Same-Sex “Marriage,” 14 Regent U. L. Rev. 487 (2002)(upholding marriage); Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage Law, 62 La. L. Rev. 773 (2002)(upholding marriage as a “socially normative institution” that must be maintained to reverse the trend toward family fragmentation); Norval Glenn, Is the Current Concern about American Marriage Warranted?  9 Va. J. Soc. Pol’y & L. 5 (2001)(upholds necessity of marriage cross-culturally); Steven L. Nock, Why Not Marriage? 9 Va. J. Soc. Pol’y & L. 273 (2001)(upholding marriage); Mark Eastburg, Marriage Strengthening Strategies for Communities: The Greater Grand Rapids Community Marriage Policy Experience, 9 Va. J. Soc. Pol’y & L. 224 (2001)(argues to uphold and strengthen marriage with community policies); David Orgon Coolidge, The Hawaii Marriage Amendment: It’s Origins, Meaning and Fate, 22 U. Hawaii L. Rev. 19 (2000)(celebrates upholding marriage in Hawaii).

[2] Lynn D. Wardle, All You Need is Love? 14 S. Cal. Rev. L. & Women’s Stud. 51 (2004).

[3] “Opposition to Same-Sex Marriage Mounts,” United Press International (April 1, 2005).