Consistency is Key

     

     Last week in Family Law we covered the case of Adoption of Baby Girl, the 2013 South Carolina case that pitted the tribal rights of Native Americans to restore their families against adoptive parents.  In an opinion returning the 4 year old back to the adoptive parents after living for 2 years with her father on his tribe's reservation, Justice Sonya Sotomayor dissented to that ruling with a thorough analysis of why children need to be connected to their natural parents. 

     This summer in Obergefell v. Hodges, however, Justice Sotomayor found with the majority that natural parents of a child are not as important as she so eloquently stated in 2013, but that rights of individual parents seem to trump a child's best interests in having a relationship with her biological parents.  This week, Professor Adam MacLeod discussed this at Public Discourse. Prof. MacLeod recently published an article on Obergefell v. Hodges with the Regent University Law Review and has recorded a Video Law Review on that piece.

     Justice Sotomayor understands the importance of the best interests of the child in one context, but not necessarily in the context of marriage expansion.  There she seems to prefer what’s best for adults’ individual choices in marriage, and the kids will be better for that.  Children thrive when they are raised by their mom and dad. This concrete foundation for children restores families.  Will the real Justice Sotomayor please stand up?

State Confusion over Issuing Same-sex Marriage Licenses

A Pennsylvania judge last week ordered town clerks to discontinue issuing same-sex marriage licenses. Same-sex marriage is not part of the law in Pennsylvania, yet recent federal Supreme Court decisions have led to confusion in local state offices.  You can read more in a recent article by JURIST.  

This Blog discussed some of the confusion over the proper application of Windsor in previous posts. The federal government is taking steps to clarify some of the uncertainty surrounding Windsor; for instance, JURIST reports the US Department of Labor recently explained that federal employee benefit plans will be available to all legally married couples, even those domiciled in states that do not recognize same-sex marriages. However, as the situation in Pennsylvania illustrates, the impact of Windsor has not yet been clearly delineated. 

JURIST is reporting that it is not yet clear how this Pennsylvania decision will affect same-sex couples who have obtained marriage licenses already in Pennsylvania:

In August lawyers for the Pennsylvania Department of Health and Governor Tom Corbett argued in a legal filing that Hanes' decision to issue marriage licenses to same-sex couples is a separation-of-powers violation that "risks causing serious and limitless harm" in Pennsylvania. In July the Pennsylvania Department of Health filed a petition in the Commonwealth Court seeking to stop Hanes from issuing marriage licenses to same-sex couples. Also in July the American Civil Liberties Union (ACLU) filed a federal lawsuit seeking same-sex marriage in Pennsylvania. The Governor's Office of General Counsel wrote to the attorney general in defense of the Pennsylvania statute, arguing that Windsor does not strike down the state's marriage law, but just the federal Defense of Marriage Act. Since the Windsor ruling, courts across the country have been citing the decision.

You can find a list of those situations at JURIST.  It is interesting that the Penn State Law Review requested an article on Windsor in a different context, which I researched, wrote, and published with them.  That article is available for downloading and reading at the Social Science Research Network. 

It seems that the Supreme Court's decision in Windsor has served less to strengthen marriage for all participants regardless of gender, and more to jeopardize its stability among the states.  Fostering family restoration requires strong state definitions and endorsement of marriage and the law of marriage entry. 

Although Pennsylvania law appears to have that type of regulation, it is being challenged on the most local level.

Will We Concede?

Maggie Gallagher, co-founder of the National Organization for Marriage and fellow with the American Principles Project, recently wrote a provocative challenge to continue standing for traditional marriage:

Can it really be just a coincidence that Pope Francis releases his first “encyclical” reiterating the Church’s timeless teaching about marriage the same week Justice Anthony Kennedy released what I called his “fatwa” against opponents of gay marriage?

I called Justice Kennedy’s opinion a fatwa for two reasons: first, he refused to engage any rational argument; he simply dismissed our whole marriage tradition out of hand, without discussion. Second, he declared half the American people simply “enemies of the human race,” as Justice Scalia put it, for our commitment to the idea that marriage is the union of husband and wife.  He made a Constitutional religion out of gay marriage, whole cloth, without any textual support at all.

Make no mistake this Supreme Court decision striking down DOMA is the Roe v. Wade of marriage—just with a slight delay in the full implementation.
The question now is: will we submit, or will we retain in our own eyes our inherent dignity as freeborn citizens of a great nation? Here’s how I put it in interview with Kathryn Jean Lopez on NRO:

“Will we concede the legitimacy of Kennedy’s fatwa against us, or will we respond with a sustained opposition — legal, political, cultural, and of the moral imagination?
I don’t believe in inevitability, I believe in human freedom and our power to shape the future. So it depends on us. But certainly I believe, as I wrote in the Los Angeles Times, that the questions raised by marriage — deeply rooted in our conception of who we are as men and women, the meaning of sexuality and gender — cannot be put to rest by the power of five lawyers on however high a court.

The cultural struggle I predicted in “Banned in Boston” is clearly playing out. Will they succeed in persuading us to accept the second-class status Kennedy lays out for us?

Not me, what about you?"

For more on this issue, including more commentary from Maggie,  see the following resources:

- Encyclical Letter “Lumen Fidei”, June 29, 2013

- Windsor v. United States, Justice Samuel Alito Dissent

- “Family Advocates Say Marriage Ruling Ignores Children” National Catholic Register, June 27, 2013

- “Moral Issues Can’t Simply Be Ruled Invalid” L.A. Times, June 27, 2103

- Interview “The Roe of Marriage” National Review Online, July 3, 2013

Recent Supreme Court Rulings and Family Restoration

       Summer for law professors and law students always brings so many events away from classes, from summer internships and clerkships, to conferences and presentations, to overseas opportunities, to special family time, to bar exam preparation, to invitations and plans for the upcoming academic year.  On top of all that, the Supreme Court generally hands down a few critical decisions at the end of June, and this year was no exception.  My excellent graduate assistant Elizabeth Oklevitch has been working in the U.S. Attorney's Office in New York and doing an excellent job of regularly handling our previously arranged posts to FamilyRestoration while I have been away from the office.  Indeed, when the three major family law cases were handed down by the Supreme Court of the United States last week I was on the other side of the world.  

            In general, while the mainstream media has reported on some aspects of these cases, they often fail to note the deeper substance of the matters involved.  More particularly, as the decisions in Hollingsworth v. Perry, (California's Proposition 8 Case on the voters' referendum defining marriage;), U.S. v. Windsor (the federal Defense of Marriage Act case challenging the definition of marriage), and Adoptive Couple v. Baby Girl (regarding the adoption of a Native American child under the Indian Child Welfare Act) were all highly charged socially, publicly, and emotionally and very rigorously litigated, it is critical to understand how each case relates to families and family law, and more particularly to family restoration. As I am finally having an opportunity to read each of these cases, our posts at FamilyRestoration over the next several days will attempt to clarify these cases, and help discern how they each relate to family restoration. 

            The results rendered in each case were partly expected, and partly unexpected, and each deserves deeper analysis in the family law and restoration context. In these posts we will summarize what happened, and lay out considerations for the short and long term effects of each case.  God has not abandoned marriage, children, or the family to whims of the High Court, or to the political leanings of just one member of the court (as each ruling was a 5-4 decision), but is already at work in the midst, as C.S. Lewis speaks through a dejected but ultimately royal Shasta in The Horse and His Boy that somehow "He is at the back of everything."  These posts will attempt to analyze these cases more substantively as they relate to you and your family.

            Today's post begins that analysis with some basic generalities that come out of these three cases as a whole.  Here is a brief Top 10 Overview: 

1.      The Supreme Court of the United States redefined marriage for federal purposes by changing one aspect of an important federal law, DOMA, to include marriage expansion for same-sex couples (more on this is the next post). 

2.      The marriage laws of all 50 states were not changed by any of the three cases.  The High Court did not strike down any state's marriage laws, and did not strike down DOMA's provision protecting State's laws on marriage.  Your State's laws on marriage remain intact.  Nothing will be different in your local family court. 38 States hold one view of marriage and 12 States hold another.

3.      California continues to face a conundrum within its own family laws as the state still has its domestic partnership laws, Proposition 8, and the holding of J. Vaughn Walker's District Court all sitting side by side on the books.  The Supreme Court of the United States settled nothing in regard to any of these laws either.  What has changed is that California's Governor has issued an order that marriage licenses be issued to same-sex couples.  See more.  It is not unlikely that a town clerk may refuse to obey that order in light of the legal conundrum that remains in the state, beginning litigation all over again (more on that in a future post).

4.      The Supreme Court of the United States did not find a federal constitutional right to same-sex marriage.  Although oral arguments and briefs laid out the best point of view for redefining marriage before the Court, those claims did not persuade justices to strike down state marriage laws or create a new federal constitutional right to same-sex marriage. The Court did not declare same-sex marriage to be a federal civil right, and it did not rule to protect same-sex marriage as the Constitution protects race, nationality, religion, or ethnicity.

5.      Children and their best interests were not a factor in the recent decisions.  They can still be intentionally denied a father or a mother, or be removed from an otherwise stable environment.  The focus of each case was on the rights of adults.  

6.      The critical role of man-woman marriage is not diminished by these rulings. The essential need for children to have both a married mother and father is not lessened by the opinions.

7.      Religious freedom is still entangled and endangered in the battle to expand marriage and deconstruct the family.  Adoption agencies, churches, florists, bakers, photographers, and parents remain subject to state laws on marriage.

8.      American culture remains confused about marriage and family.  God's design for marriage, sexuality, the family, and parenting remains the moral compass for law and culture.  Your marriage and your family remain the most important component of a strong society.

9.      Adoption was protected as the legal formation of a family, particularly when that family was never formed, even though the federal code contains protections against the deconstruction of Native American families (more on this in a future post).

10.  The debate will continue over marriage expansion and family deconstruction.

            Family restoration remains a daunting task in light of each of these rulings by the Supreme Court of the United States.  That is why it is all the more true that you and I have a new opportunity to shine light on a confused culture.  Recommit your efforts to your own marriage, your own children, and your own family.  Damage may not be able to be undone, but you can begin anew by placing the interests of those you love above you own interests.  

            Our next posts will discuss the federal case, U.S. v. Windsor, more in detail; then the California case, Hollingsworth v. Perry; then Adoptive Couple v. Baby Girl.  It is important to understand the rulings in each case, and how they affect your family, and family restoration.

ESPN, Wedding Cakes, and Religious Beliefs

In the wake of marriage expansion, people of faith can be maligned for holding to basic ideas of marriage.

Governors for both Delaware (see more) and Rhode Island (see more) have signed into law resolutions to expand marriage for same sex partners.  Meanwhile, private individuals of faith are being coerced into support for marriage expansion, or denigrated for their support of marriage.

At the end of April, ESPN Reporter Chris Broussard came under attack for supporting marriage in an Outside the Lines piece.  See commentary and a link to that segment here.

In Oregon a bakery owner who refused to provide a cake for a lesbian wedding is being investigated by the State for violations of Oregon's non-discrimination act. You can see the case here. This case is just in the beginning stages.

Meanwhile, a Seattle florist is also being sued for refusing to provide wedding flowers for a same sex wedding. You can see more about that story at here.

Regent alumna Anna Adams, now an attorney in Oregon, has written about these issues in her recent article published by the Regent Journal of Law and Public Policy, which can be accessed here.

Family restoration requires people of faith to be able to freely hold to their beliefs on marriage, enjoy First Amendment rights to speak about those beliefs in an appropriate time, place, and manner, and to continue to practice their faith by holding to their beliefs on marriage, as the United States Constitution guarantees. 

Sports stories and wedding arrangement vendors should not be maligned for their views on marriage.

Marriage and Family Restoration in Indiana and the World

The recent U.S. Supreme Court arguments on same-sex marriage have generated intense interest and speculation in what already was a controversial cultural issue.  It is certain, however, that the Court's decision will not fully resolve the issue.  After an interesting set of oral arguments in late March and a decision expected in late June, state authorities will likely still be concerned whether or not the government should be involved in sanctioning marriage whatsoever.

A recent newspiece by Dr. Stephen M. King from the Indiana Policy Review Foundation focused on what this could mean for states like Indiana that thought they had effectively protected marriage in their state, and cited work of two Regent Professors in his defense. He writes:

 "Since 1989, when Denmark became the first country to legalize same-sex marriage, popularity for homosexual legal rights including the right to marry has increased. According to The Economist magazine, same-sex marriage is legal in 13 countries, with New Zealand the most recent. But even as Britain decriminalized homosexuality in marriage in 1967, and our Supreme Court struck down all 14 state sodomy laws in 2003 (Lawrence vs. Texas), there is strong opposition around the world, especially in 78 African and Islamic countries where homosexuality and, de facto, same-sex marriages are a crime.

Still, our laws tend to change as public attitudes shift. Since 2000, when Massachusetts became the first state to recognize same-sex marriage (the first ceremony taking place in 2004), eight additional states and the District of Columbia have legalized same-sex marriage.

Indiana is one state for a ban on same-sex marriage. Attorney General Greg Zoeller filed a brief with the Supreme Court supporting Indiana's statute disallowing homosexual couples to legally marry.

Even so, and despite strong opposition in the state toward legalizing same-sex marriage, the Indiana General Assembly pointedly decided to table any vote for a constitutional restriction until 2014. And recent polling numbers show that approximately 49 percent of Americans surveyed support the right of same-sex couples to marry. Differences are striking when controlled for age: Over 70 percent of the Millennial Generation favors same-sex marriage, compared with 38 percent of the Baby Boom Generation. Still, these numbers show distinct increases in favorability since 2003.

Despite this increased favorability for same-sex marriage, 41 states disallow same-sex marriage, including Indiana, either constitutionally (30 states) or statutorily (11 states). The issue is not going to be easily resolved, or wholeheartedly accepted, whatever the court's decision if one can judge from the strong support of various groups and individuals who congregated outside the Supreme Court building to vocalize their opposition to or support for same-sex marriage during the Court's hearings last month.

Both proponents and opponents have their various reasons to explain why governments should, and even must, sanction marriage, including personal, cultural and procreation. A growing defense against government sanction of marriage, however, is privatization. This argument is generally supported by libertarians, who maintain that removing government from the equation will solve the problem. Still others argue the issue should be devolved to the states with little to no federal government intervention.

Let's look at the privatization question. It takes two different positions: Remove government from strictly regulating marriage, whether at the federal or state level, thus allowing any couple to marry for any reason; or treat marriage as any other contract, and allow government to enforce the terms of the contract, just as it does in any business relationship.

Proponents of privatization contend that it reduces government regulation and rules. In addition, it resolves the same-sex marriage dilemma by placing such relationships on the same level as traditional marriages without requiring government support. Others even argue for using different nomenclature: civil unions for homosexual couples and marriage for heterosexual couples, but with each benefiting from all government benefits.

Supposedly this is a win-win situation. But is it?

A 2002 law-review essay supports the Indiana position in concept and specifically argues against a 'privatization' of marriage to include homosexuals. Two Regent University scholars, Lynne Kohm and Mark Yarhouse, contend that the constitutional fundamental-rights doctrine does not apply to marriage of same-sex couples. In order for the doctrine to apply to any group or issue, whether it is the right to bear arms or marry, the participants must meet basic requirements. To marry, for example, the minimum requirements are: 1. the parties be of the minimum age; 2. marry only one person at a time; 3. are unrelated by blood or marriage; and 4. are of different sexes.

In Loving vs. Virginia (1967), the Supreme Court ruled that two people of different races could not be denied the right to marry. When homosexual couples use this case to support their position, Kohm and Yarhouse contend their argument is flawed if examined in light of the minimum requirements of the fundamental-rights doctrine. [Access that article by Kohm and Yarhouse at SSRN at http://ssrn.com/author=183817.]

Specifically, they argue that to constitute a 'fundamental constitutional right,' two factors are necessary: 1. The right must be rooted in the nation's history and tradition; and 2. it must be clear and distinct in the nation's legal history. Therefore, according to the authors, homosexual couples are denied the fundamental right to marry, because they do not meet these cultural, historical and legal obligations.

Government, to summarize this position, should remain in the business of sanctioning traditional marriage, not solely because two people love each other, but primarily because of the historical, cultural and legal nature of traditional marriage itself."

Stephen M. King, Ph.D., is an adjunct scholar of the Indiana Policy Review Foundation, and teaches political science at Taylor University.  See the full article from the Indiana Tribune on April 30, 2013, here.  Marriage protects individuals, state governments, and the future of a union of those state governments.  It is the basis for any family restoration anywhere in the world.

Proposed Marriage Legislation Would Work to Further Deconstruct Families

This post is reprinted from April 23, 2013, http://www.citizenlink.com/2013/04/23/lawmakers-in-5-states-consider-same-sex-marriage-legislation/ and provides the latest information on state marriage legislation.

Lawmakers in 5 States Consider Same-Sex Marriage Legislation

by Bethany Monk

As lawmakers in five states are considering bills that would redefine marriage, a poll shows a majority of Americans support the institution as a union between one man and one woman. It found 57 percent of likely voters in states where same-sex marriage is not recognized would oppose such a measure. Thirty-four people said they would support it. Harper Polling conducted the automated phone survey last week of 1,741 likely voters for Conservative Intelligence Briefing.

“The poll reflects what we know, that most people understand that marriage unites a man and a woman and any children they will have,” said Jeff Johnston, CitizenLink marriage analyst. “They look around and understand that all our experiments with marriage — no-fault divorce, cohabitation, single-parenting — have been disastrous. They’ve learned from that and don’t want to try yet another experiment with marriage.”
Legislators in five states are considering marriage redefinition bills:

• Delaware: The House approved a bill today that could create same-sex marriage. It would still have to be passed by the Senate and signed into law. Under the legislation, no new civil unions would be performed after July 1, and existing civil unions would be converted to marriages.
• Rhode Island: The Senate Judiciary Committee voted 7-4 today to send a same-sex marriage bill to the full Senate. The House approved the bill in January. It would create same-sex marriage. Civil unions would become marriages on Jan. 1, 2014.
• Illinois: The Senate approved a same-sex marriage bill on Feb. 14. A date has not been set for the full House vote on the legislation.
• Minnesota: Legislation that would create same-sex marriage has not yet reached the floors of the House or Senate. A bipartisan group of legislators introduced the bill in February. It would repeal a 1997 law defining marriage as a union between one man and one woman.  Regent graduate Autumn Levy is working with legislators to maintain marriage.
• Nevada: Lawmakers passed a resolution Monday in the Senate that could redefine marriage. If the entire Legislature approves it this session, they will need to do so again in 2015. Voters would have to approve it in 2016.

The District of Columbia and nine states — Connecticut, Vermont, New Hampshire, Iowa, Washington, Maine, Maryland, Massachusetts and New York — have all redefined marriage.

Thirty-one states have amendments defending marriage.

FOR MORE INFORMATIONView the poll results.
Learn more about Delaware’s HB 75.
Learn more about Rhode Island’s H 5015.
Learn more about Illinois’ SB 0010.
Learn more about Minnesota’s HF 1054. 
Learn more about Nevada’s SJR 13.

****

A great deal of scholarship by Professor Kohm is on the significance of marriage to family strength. It all can be accessed on the Social Science Research Network (SSRN) at http://ssrn.com/author=183817. Law is more than a profession - it's a calling.... and Regent students, professors, and graduates are working to make a difference.

Family Restoration and the Significance of Marriage

In our efforts to communicate the significance of marriage to family restoration we have made a number of posts here at FamilyRestoration detailing arguments surrounding the current marriage debate. '

Here we link for you a clear and concise booklet that you can print, send, or share in efforts to equip and educate people in the area of marriage. Drafted by collaborative efforts between Alliance Defending Freedom, Family Research Council, National Organization for Marriage, and The Heritage Foundation, it is a clear, concise, and effective tool in understanding marriage and the future of the family.

There is a strong cultural contingent in the legal community that will hasten the legalization of polygamy in the wake of marriage equality. You can read about that strategy here as "marriage equality for all," at this link. For a response to the legalization of same sex marriage and how it relates to legalization of multiple marriage partners see the insightful and informative article at this link.

Furthermore, the Anglican Church of England has issued now in April 2013 a definitive statement on the positive value of marriage in the Christian ethic. The document from the Faith and Order Commission can be found at this link.

Finally, there are some important things you and your family can do on your own to protect and strengthen marriage, available at this link. They include:

1. Hold tight to the truths of the Scriptures. Do not grow weary.
2. Honor a biblical understanding of marriage by remaining faithful to your respective spouse.
3. Continue raising your children in the nurture and admonition of the Lord.
4. Share the Good News of the Gospel with all people. Be winsome but be bold.

Family restoration for American culture is dependent on a solid legal foundation for marriage between one man and one woman that will protect the best interests of children.

Restoring Families, Children, and Marriage

The current marriage debate has so many angles to consider.  The confusing rhetoric surrounding the debate only serves to muddle its significance.  These ten questions and answers to consider about marriage published by the American Thinker athttp://www.americanthinker.com/2013/04/m-ten_qa_on_same-sex_marriage_canards_and_evasions.html serve to sort out the tangled web of rhetoric.  Restoring families requires this understanding.

Ten Q&A on Same-Sex Marriage Canards and Evasions

By Stella Morabito

Forces pushing for genderless marriage are a wellspring of fallacies and unanswered questions about the consequences. Let's explore some of them.

1. What's love got to do with it?

Nothing. Romanticizing this debate by claiming that any two people in love should have a civil right to civil marriage is a foolish distraction. Neither judges nor legislators have any business discussing "affection" as a factor in defining civil marriage. Clergy who bless marriages have a legitimate and separate role in discerning the internal dynamics of couples. But not the state.

2. What is the state's interest in marriage?

First, to recognize the union that produces the state's citizens. Second, to encourage those who sire and bear the citizens to take responsibility for rearing them together. That's all, folks. Proponents of genderless marriage often answer this question with non sequiturs such as property rights (irrelevant), civil rights (extraneous to the question), and "love and stability" (not a function of state involvement).

3. Why should state interest in marriage be about children if not all marriages produce children?

It's thoroughly irrelevant that many heterosexual couples lack children because of intent, infertility, age, or health. Claiming that this is relevant to the case for genderless marriage suggests the "fallacy of composition": inferring that something must be true of the whole from the fact that it is true of some part of the whole. Citizens of the state can exist only through the female-male union, no matter how the union occurs -- whether traditionally, artificially, or in a petri dish. That's the only fact that provides any grounds for state interest in marriage.

4. What about marriage for the sake of same-sex households with children?

We just don't have the right to deliberately deprive children of knowing their biological mothers or fathers. But genderless marriage ultimately requires us to do this. It requires society to sanction the refashioning of familial bonds in alienating and experimental ways. Use of surrogates and egg or sperm markets put children at ever-increasing risk of being treated more as commodities than as human beings. Laws supporting genderless marriage cannot help but ramp up these trends to newer and crueler levels.

5. Won't biological parents continue to have a default legal right to rear the children they sire and bear together?

See Question 4. The rights of biological parents to raise their own children will necessarily diminish in the wake of legalization of same-sex marriage, because changing the definition of marriage results in changing presumptions about who the legal parents are. Recognizing marriage as the union of one man and one woman is the only sustainable basis upon which a biological mother and father are legally and by default recognized as the primary caregivers of their children. But today there's a new push for the state to require special licensing of all family configurations as "care-giving units."

6. How can legalization of same sex marriage affect my own marriage?

It is the vehicle by which all civil marriages may soon be abolished, including yours. When children are no longer considered central to state purpose, marriage becomes nothing more than a contract between any two (or more) people. A reversal of DOMA could give force to an emerging movement called "singlism," which argues that the state should cease recognition of marriage because it is discriminatory against those who do not have partners.

Furthermore, the un-defining of marriage is only one part of a package deal that includes the transgender push for the un-defining of gender. This is already happening under the radar through laws that define gender identity only on self-perception: seeing yourself on any given day as male, female, both, or neither. If that goal is achieved, the reduction of your "marriage" to social and legal gibberish will be complete. And as we become more isolated from family bonds in the eyes of the state, the state becomes freer to define our humanity.

7. How about we just "get the state out of the marriage business" altogether?

This is a silly slogan that actually invites the government to regulate our personal associations on a scale we've never before witnessed. Libertarians like to discuss "privatizing" marriage, but we should smell a big fat government trap here.

State recognition of marriage serves to ensure the autonomy of the family, which in turn serves as the greatest buffer zone between the individual and the power of the state. If civil marriage is abolished, all families instead become partnerships subject to contract law, with the state ever more aggressively defining and regulating those contracts. And how can we expect the government to respect family autonomy if we no longer require the government to recognize it?

8. Isn't it relevant that public opinion is shifting in favor of same sex marriage?

No. Poll numbers reflect only what people are willing to say. People consistentlyfalsify their preferences when confronted with the likelihood of being smeared, isolated, and punished if they express "incorrect" views. The echo chambers of media, academia, and Hollywood serve as enforcers. Constant repetition of views, no matter how implausible they may seem at first, combined with the suppression of dissent, often results in an availability cascade that leads to shifts in public opinion.

9. What about all those conservative politicians and pundits now reversing course and supporting same sex marriage?

See #8. Politics as usual. The self-reinforcing opinion cascade is having its intended effect on them. None offer substantive arguments. The fear of losing turf, power, and connections leaves them more susceptible than most to the forces of preference falsification and the suppression of dissent.

10. What about equal rights for gays? Doesn't restricting marriage to union of a man and woman infringe on their civil rights?

Civil societies recognize and respect the inherent worth and dignity of every human being. But marriage is what it is, rooted in sexual complementarity and biology. This fact makes some people sad. And angry. So in the interests of fairness, public officials are changing the meaning on paper to make the emotionally afflicted feel better.

The reality is that this disrespectful hijacking of the civil rights movement in order to co-opt the definition of marriage reduces everybody's civil rights.

It violates the rights of children by serving to deprive them deliberately of biological parents. It violates everybody's civil right to religious freedom by setting up a collision course in which conscience protections will be trumped by a nonsensical legal definition of marriage. It violates our freedom of association by removing the buffer zone of family (and all mediating institutions) that insulate all individuals in society from abuses of state power. It violates freedom of expression by requiring Orwellian Newspeak of everyone, especially those accused of hate for objecting to same-sex marriage.

In the end, the primary beneficiary of this social experiment is a tyrannical minority hell-bent on controlling every aspect of our lives and eventually dictating all of our personal relationships.

Stella Morabito has published several op-eds on same-sex marriage in The Washington Examiner.

Marriage Before the Supreme Court

The oral arguments are over and now marriage is before the Supreme Court of the United States, in two separate but related cases that will make a difference in the direction of marriage in America. Perry v. Hollingsworth, the California Proposition 8 challenge to voters' ability to define marriage for their state, and Windsor v. U.S., the New York same-sex union case that is challenging the federal Defense of Marriage Act regarding a federal definition of marriage, will both likely have profound effects on the future direction of marriage. You can listen to the oral arguments here.

I have joined several law professors in an amicus brief to the High Court in Perry on behalf of four different organizations of black pastors and faith based groups, asking the Court to uphold California's definition of marriage. You can view that here. And I have also joined several law professors in another brief in Windsor and you can view that here. These cases could potentially redefine marriage for every state, regardless of current state law or state constitutional provisions. Several briefs have been filed in the Windsor case. See the Jurist.org article at http://jurist.org/paperchase/2013/02/three-briefs-filed-with-supreme-court-in-case-challenging-doma.php

Though the federal government is neither a plaintiff nor a defendant in Perry, the Proposition 8 case, the Obama administration filed a brief to the U.S. Supreme Court. In its brief, the U.S. Department of Justice asked the court to strike down California's marriage law as unconstitutional under the 14th Amendment to the U.S. Constitution. You can find that brief here.

Last month the Illinois Senate approved same sex marriage, noting that the state will recognize same sex marriage and afford it full faith and credit regardless of the federal rule in DOMA. See it at http://jurist.org/paperchase/2013/02/illinois-senate-approves-same-sex-marriage-bill.php.

The United Kingdom has also set out a plan for "equal marriage," outlining a proposal for marriage to be available to any parties who wish to enter into such a union. Read more about that at http://www.culture.gov.uk/news/media_releases/9585.aspx . To read the text of the proposed legislation read here. http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0126/cbill_2012-20130126_en_6.htm#sch6-pt2 In France citizens are protesting the French president's plan to legalize same sex marriage to allow couples to adopt and conceive children, stating that they "have nothing against different ways of living, but we think a child must grow up with a mother and a father." Meanwhile, an individual has filed a lawsuit to be married to his donkey: http://www.theamericanconservative.com/dreher/does-the-law-love-an-ass/ .

New directions for marriage are ahead; the question is whether they will foster family restoration, or family deconstruction.

Marriage Before the Nation

A leading champion for marriage, Maggie Gallagher shares her concern for the arguments before the Supreme Court this week:

Half or more of the American people believe marriage is the union of husband and wife for a reason: these unions can make new life and connect children to the mother and father who made them. For the Supreme Court to brand these millions of people irrational bigots because we do not believe gay unions are marriages—and take away our right to use the democratic process to make our case to the American people—is not going to end the culture wars, it's going to entrench them. We don't need another Roe v. Wade. We need a court that respects the rights of all the American people, not just the politically fashionable ones. Seven million Californians deserve the right to vote for marriage, and taking away that precious and important right is wrong. I will go out on a limb and predict that the majority of this court is not going to overturn Prop 8. Do not try to make the American people believe that the Constitution written by our founding fathers in 1789 requires gay marriage. On March 7, Justice Anthony Kennedy, when a library was named in his honor at a Sacramento federal courthouse, made the case that too many moral issues are being referred to the courts:   I think it's a serious problem. A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say. And I think it's of tremendous importance for our political system to show the rest of the world — and we have to show ourselves first — that democracy works because we can reach agreement on a principled basis. "On this he is right," said Gallagher. "It requires no courage, at this point in history, to side with gay marriage advocates. Respecting the rights of the millions of Americans who disagree, and respecting the boundaries of our Constitution, is staying on the right side of history. "I urge the Supreme Court to respect our Constitution, respect the rights of all Americans, and respect those who right now, outside the Courtroom today, are standing up for the classic understanding of marriage as the union of husband and wife, against those who seek to change its meaning and purpose without the consent of the American people." Once again, I value your opinion, please click here if you care to comment. I will read and respond on the website. Warmly, Maggie MaggieGallagher.com   Family restoration needs the foundation marriage provides.  The Supreme Court will make that decision for the nation. Forward To A Friend

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Children Benefit from Family Restoration Based on Marriage

Children benefit from marriage - that lifetime union of one woman and one man - as a basis for their family, as evidenced from law and culture around the globe.  Some experts, however, are suggesting that marriage expansion - expanding marriage to include other combinations of individuals than one woman and one man - is not bad for children.

When nations consider the incidents of marriage as a place to conceive and raise children, citizens seem to have a profound viewpoint change on the issue of marriage expansion.  France provides a timely international example.  Police in Paris estimated a crowd of 340,000, the largest demonstration there since 1984, protesting the French president's plan to legalize same sex marriage to allow couples to adopt and conceive children,[1] stating that they "have nothing against different ways of living, but we think that a child must grow up with a mother and a father."[2]  This debate reflects a "deep and abiding moral and ideological divide in France."[3] Colombia's position on same-sex marriage and parenting is being challenged in a lawsuit for recognition of the now-nonexistent parental rights of a non-biological partner.[4] 

Puerto Rico's Supreme Court recently upheld a law banning same-sex couples from adopting children in a best interest analysis.[5] And marriage expansion toward same gender couples is the subject of Supreme Court decisions this spring,[6] though neither case before the high court is directly about parenting choices and children, but rather rights recognition for the adults.  Others suggest that same-sex marriage has restricted parental rights and human rights in Canada, which is now ten years hence of making same-sex marriage the national law.[7] 

Now Psychology Today has published a piece on whether group marriage - or polyamory - is bad for children.  Polyamory is the natural progression of marriage expansion.  This article argues that many adults in a sexual relationship together can foster good and healthy aspects of a child's life.  You can read " Is Polyamory Bad for Children" at http://www.psychologytoday.com/blog/living-single/201301/is-polyamory-bad-the-children.

Children do not need many moms and many dads all in consortium together.  Rather, a child simply needs one mother and one father to provide him or her with stability, continuity, love, respect, and a safe place to grow and thrive.   Children benefit from family restoration based on marriage most of all.

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[1] Lori Hinnant, Huge Turnout in Paris for Anti-Gay-Marriage Protest, The Virginian-Pilot, Jan. 14, 2013, at 11.

[2] Id., stating "French civil unions, allowed since 1999, are at least as popular among heterosexuals as among gay and lesbian couples.  But that law has no provisions for adoption or assisted reproduction, which are at the heart of the latest debate," noting that 52% of French favor legalizing gay marriage, according to a survey released Sunday, down from as high as 65% in August.  But see also Steven Erlanger, At once Catholic and Secular, France Debates Gay Marriage, New York Times, Jan. 10, 2013, at A5 (discussing demonstrations in favor of same-sex couples and "marriage for all" legislation).

[3] Robert Saretsky, Egalite Meets Gay Marriage, New York Times, Feb. 8, 2013, at http://www.nytimes.com/2013/02/09/opinion/global/the-gay-marriage-debate-in-france.html?_r=0  (discussing that the heart of the matter is not over gay marriage but over gay parenting, quoting Sylvian Agacinsky: "If we truly sought what is most universal in our lives, we could go no further than the fact that 'a child can only issue from a father and mother, that is to say a man and a women.' We ignore this 'fundamental value' only at our own and society's peril, Agacinski warns. Most alarming, in her eyes, is the burgeoning market in surrogate mothers, women engaged inw hat she calls 'a commerce in human beings'.").

[4] Leiderman (the biological and gestational mother of a son and a daughter) and Botoero (her partner) are litigating the matter.  See Juan Forero, Colombia same-sex case could have regional impact, Washington Post, Aug. 12, 2012, at A10 (highlighting the legal victories homosexual parenting communities have achieved in socially conservative Latin America and discussing the women's desire for recognition).

[5] Jaclyn Clifford, Puerto Rico Supreme Court upholds same sex adoption ban, Jursit.com, Feb. 22, 2013, http://jurist.org/paperchase/2013/02/puerto-rico-supreme-court-upholds-same-sex-adoption-ban.php. (citing the opinion which is available in Spanish at http://recend.apextech.netdna-cdn.com/docs/editor/Sentencia-%20CC-2008-1010.pdf).

[6] Hollingsworth v. Perry, No. 12-144,  SCOTUS (2013)(considering the constitutional merits of California's voter approved referendum Proposition 8 defining marriage as between one man and one woman); US v. Windsor, No. 12-307, SCOTUS (2013)(considering the constitutionally of the federal Defense of Marriage Act in its definition of marriage as being between one man and one woman).  For a brief practical review of those cases see Anna Stolley Persky, Marriage Equality: Will Shift in Public Opinion Sway the Supreme Court? Washington Lawyer 18 (Feb. 2013)(discussing cultural support for same sex marriage according to Persky).  For an academic approach to each see Brief for Amici Curiae The Coalition of African American Pastors USA, the Center for Urban renewal and Education, The Frederick Douglass Foundation, Inc., and Numerous Law Professors in Support of Petitioners and Supporting Reversal, Hollingsworth v. Perry, No. 12-144,  SCOTUS (2013); and Brief for Amici Curiae Law Professors in Support of Respondent Bipartisan legal Advisory Group of the United States House of Representatives Addressing the Merits and Supporting Reversal, U.S. v. Windsor, No. 12-307, SCOTUS (2013), both available at www.scotusblog.com.

[7] See, e.g. Bradley Miller, Same-Sex Marriage Ten Years On: Lessons from Canada, Public Discourse, Nov. 5, 2012 (regarding the reality that opposition to same-sex marriage has created a new orthodoxy that limits freedom of expression as a human right, and limited parental rights in public education due to the institutionalization of same-sex marriage in curriculum that do not allow a parent object to that information as not the best education for his or her children).

NFL Football Players Speak Out On Marriage

Of all the discussion on marriage lately, none has been so unique as the dialogue between the National Football Players for the Baltimore Ravens, with a few politicians and critics poking in here and there.

Baltimore Ravens linebacker Brendon Ayanbadejo has publicly expressed support for same-sex marriage, and Baltimore Ravens Center Matt Birk, after some back and forth with other players, recently expressed his views in the Minneapolis Star-Tribune.  Minnesota will vote on marriage this fall.  Birk's candid, focused, measured, and well-reasoned reply

reveals why he holds his views on marriage protection, and why Brendon Ayanbadejo respects him for those views.

Children have a right to a mom and a dad, and I realize that this doesn't always happen. Through the work my wife and I do at pregnancy resource centers and underprivileged schools, we have witnessed firsthand the many heroic efforts of single mothers and fathers -- many of whom work very hard to provide what's best for their kids.

But recognizing the efforts of these parents and the resiliency of some (not all, unfortunately) of these kids, does not then give society the right to dismiss the potential long-term effects on a child of not knowing or being loved by his or her mother or father. Each plays a vital role in the raising of a child.

Marriage is in trouble right now -- admittedly, for many reasons that have little to do with same-sex unions. In the last few years, political forces and a culture of relativism have replaced "I am my brother's keeper" and "love your neighbor as yourself" with "live and let live" and "if it feels good, go ahead and do it."

The effects of no-fault divorce, adultery, and the nonchalant attitude toward marriage by some have done great harm to this sacred institution. How much longer do we put the desires of adults before the needs of kids? Why are we not doing more to lift up and strengthen the institution of marriage?

Same-sex unions may not affect my marriage specifically, but it will affect my children -- the next generation. Ideas have consequences, and laws shape culture. Marriage redefinition will affect the broader well-being of children and the welfare of society. As a Christian and a citizen, I am compelled to care about both.

I am speaking out on this issue because it is far too important to remain silent. People who are simply acknowledging the basic reality of marriage between one man and one woman are being labeled as "bigots" and "homophobic." Aren't we past that as a society?

Don't we all have family members and friends whom we love who have same-sex attraction? Attempting to silence those who may disagree with you is always un-American, but especially when it is through name-calling, it has no place in respectful conversation.

A defense of marriage is not meant as an offense to any person or group. All people should be afforded their inalienable American freedoms. There is no opposition between providing basic human rights to everyone and preserving marriage as the sacred union of one man and one woman.

Matt Birk has received a great deal of criticism and name calling since his opinion was published, but his teammate Brendon Ayanbadejo came to his defense on Twitter.  “I don’t think he’s homophobic, Ayanbadejo tweeted, “Matt Birk is an amazing father, teammate, man!”  Focus on the Family's Jim Daly wrote a great piece highlighting Matt Birk's express views on marriage and and opening a public discussion on the matter at  http://www.focusonlinecommunities.com/blogs/Finding_Home/2012/10/03/this-nfl-player-said-what?refcd=136901.

There has been a great deal of posting on marriage here at Family Restoration, and you may want to consider again what's happening in Minnesota, Maine, Washington, and Maryland by reading my post on the JURIST at http://jurist.org/forum/2012/06/lynne-kohm-marriage-referendum.php, or here on this blog at http://www.regentfamilyrestoration.blogspot.com/2012/09/marriage-and-election-2012.html.  But hearing it from players for the Baltimore Ravens in a state like Maryland that is politically battling over the issue adds spark and substance to a matter that is significantly important to families not only in Maryland and Minnesota, but across the entire country. 

Family Fragmentation in Ireland and America

Family strength and stability in Ireland is facing many challenges, as David Quinn of the Irish Independent discusses in his recent article "Who'll Defend Marriage." He writes,

"The health of marriage as a social institution is measured in various ways...For example, how many people are getting married? How many people are divorcing or separating? How many people cohabit either as an alternative to marriage or a precursor to it? Does marriage receive special support and recognition both from society and from the State that protects and encourages it? Above all, how many children are raised by both of their married parents until they are grown up?

Those who think about the health of marriage in Ireland are concerned that just less than half of our population over the age of 18 is married. That is lower than in America. They are concerned that the number of Irish people who have experienced divorce or separation has skyrocketed from 40,000 in 1986 to 250,000 last year. They are concerned that the rate of cohabitation in Ireland is now higher than in the US. They are concerned that the social welfare code actually penalizes marriage. They are also concerned that 28pc of Irish children do not have the advantage of being raised by their two married parents. That is higher than the EU average. Anybody who genuinely cares about the health of marriage has to be as concerned about these trends as an economist is concerned about the rate of inflation or unemployment."

Discussing further the politics of marriage in Ireland, Quinn highlights the significance of social innovations, and the potential, now real, damaging they bring to Irish society. When marriage is either weakened or redefined it always results in family fragmentation, rather than family restoration. Read his article here at the Irish Independent.

Rachel K. Toberty and I have spent the summer researching the cost of family fragmentation in each of the 50 United States, and to examine what States can do to minimize those costs. We will be dropping pieces of information throughout the fall, but look for the answers in the upcoming fall issue of the Regent Law Review.