What’s the Harm? Changes and Challenges in Family Law

by Lynn D. Wardle

Bruce C. Hafen Professor of Law J. Reuben Clark Law School, Brigham Young

University

Presented at BYU Education Week, August 19, 2009

Welcome

Thanks for coming (back)Thanks to BYU Education Week for allowing this

class (Recommend Elder Packer’s keynote Devotional

Address yesterday, 8/18, defend your families)Leave 5-10 mins Qs

Humor

Lecture #2: What’s the Harm? Does legalizing same-sex marriage and gay parenting really harm individuals,

families or society?  (Aug. 19, 2009)

Outline:

1) Summary Review status of recent developments2) How these developments harm children 3) How these developments threaten individuals and families (family relations, civil rights, religious liberty) 4) How these developments harm society (change meaning of marriage, transformative power of inclusion, weaken expectations of marriage by gay lifestyle, harms belief that children need both mother and father, propaganda and indoctrination; it’s about protecting the institution of marriage not about gays or lesbians; all relationships are not equal in + impact on society, federalism and separation of powers).5) Exporting and importing same-sex marriage,civil unions, gay adoptions. (potential for DOMA and conflicts dominating, lessons from Dred Scott

I. Summary of (/191) & States (/50) w/ SSM/CUs :A. LEGALIZED

Same-Sex Marriage Legal: Seven(7)* Nations and Six (6) USA States: The Netherlands, Belgium, Canada, Spain, South Africa,* Norway & Sweden (US: MA, CN, IA, VT, ME & NH [CA-overturned, ME ‘people’s veto’ pending])

 Same-Sex Unions Equivalent to Marriage Legal in Thirteen Nations and Five US States: Denmark, Norway, Sweden, Iceland, Finland, France, Germany, Luxembourg, Slovenia, South Africa*, Andorra, Switzerland, UK, New Zealand (US: CA, NJ, OR, WA, NV) (CUs replaced by SSM in VT, CN, NH)

Global (US) Progress of Same-Sex Marriage, and Marriage Equivalent Civil Unions or Partnerships, 1985-2009

YEAR Same-Sex Marriage (US)

Same-Sex Marriage-Equivalent

Unions/Partners (US)

1985 0 0

1990 0 1

1995 0 3

2000 0 6 (1)

2005 3 (1) 13 (3)

2007 5 (1) 15 (6)

2009Au 7 (6) 13 (5)

B. U.S. States & Nations Prohibiting Same-Sex Marriage/Unions

Same-Sex Marriage Prohibited by law or appellate court decision in Forty-two States:

(All but MA, CN, IA, VT, ME, NH, NM, RI & VT)

Same-Sex Marriage Prohibited by State Constitutional Amendment in Thirty (30) States:

(AK, AL, AR, AZ, CA, CO, FL, GA, HI, ID, KY, KS, LA MI, MS, MO, MN, NB, NV, ND, OH, OK, OR, SC, SD,

TN, TX, UT, VI, & WI)

Same-Sex Civil Unions Equivalent to Marriage Prohibited by State Constitution Amendment

in Nineteen (19) USA States

(AL, AR, FL, GA, ID, KS, KY, LA, MI, NB, ND, OH, OK, SC, SD, TX, UT, VI, WI)

Thirty-seven (37) of 191 Sovereign Nations (19%) Have Constitutional Provisions Declaring Marriage = Union of Man and Woman: (Armenia (art. 32), Azerbaijan (art. 34), Belarus (art. 32), Brazil (art. 226), Bulgaria (art. 46), Burkina Faso (art. 23), Cambodia (art. 45), Cameroon (art. 16), China (art. 49), Columbia (art. 42), Cuba (art. 43), Ecuador (art. 33), Eritrea (art. 22), Ethiopia (art. 34), Gambia (art. 27), Honduras (art. 112), Japan (art. 24), Latvia (art. 110 – Dec. 2005), Lithuania (art. 31), Malawi (art. 22), Moldova (art. 18), Serbia (art. 62), Somalia (art. 2.7), Suriname (art. 35), Swaziland Constitution (art. 27), Tajikistan (art. 33), Turkmenistan (art. 25), Uganda (art. 31), Ukraine (art. 51), Venezuela (art. 77), Vietnam (art. 64). See also Mongolia (art. 16), Hong Kong Bill of Rights of 1991 (art. 19). (E.g., Article 110 of the Constitution of Latvia now reads: “The State shall protect and support marriage—a union between a man and a woman,…”)

C. Adoption by Same-Sex Couples & Partners

Status of Law in USA (August 19, 2009) re:Adoption of Children by Gay and Lesbian Couples & Partners

21 States and DC have statutes or appellate court rulings on whether same-sex couples/partners can adopt; seven other states have other legal developments that strongly suggest what the result will be; so in a total of 28 states + DC the issue is largely resolved. The issue is undecided in 22 states.

Adoption by homosexual individual not barred per se in most states.  

Prohibited = 9 (AL, AR, FL, KY, MS, NE, OH, UT, WI) Probably Prohibited = 1 (OK) 

Total Prohibited or Probably Prohibited = 10 states Allowed = 13 (CA, CO, CN, DC, IL, IN, ME, MA, NH, NH, NY, PA & VT)

Probably Allowed = 6 (IA, NC, NV, OR, TN, WA)Total Allowed or Probably Allowed = 18 states + DC (19)

Undecided = 22 (AL, AZ, DE, GA, HI, ID, KS, LA, MD, MI, MN, MO, MN, NM, ND, RI, SC, SD, TX, VA, WV, WY)

The policy varies according to which branch of government took the initiative. As of 2006: In 11/16 sts where the courts had acted first allowed lesbigay adoption; In 4/5 states where a legislature acted first to address the issue, the rule adopted has barred lesbigay adoption.

Number of Children in the USA Being Raised by Same-Sex Partners:Activist estimates: 1M, 4M, 6M, 14 Million children; 1.5-6M couples Grossly

inflated (or premature?)

LDW: 300,000 – 400,000 children being raised by SSCs

Lambda Legal: 250,000 children being raised by SSCs “According to recent data, there are roughly 250,000 children in the United States being raised by same-sex couples. But the rights of LGBT parents vary widely among states. About half of all states permit second-parent adoptions by the unmarried partner of an existing legal parent, while in a handful of states courts have ruled these adoptions not permissible under state laws.”

Source: http://www.lambdalegal.org/our-work/issues/marriage-relationships-family/parenting/ (071001)

Number of Children Adoption by Same-Sex Partners:2000 Census: 57,693 children being raised by unm’d couples (11%=SSCs)Est. 6,500 children adopted by lesbigay couples BUT, “Gayby” boom since 2000! Probably tens of thousands now.Recent estimates = 65,000 adopted cren in L&G homes (probably inflated or

confused).

Gates, et al, UCLA Law School, Adoption and Foster Care by Gay & Lesbian Ps in the US (Williams Insti & Urban Insti, Mar 2007)

Gates Adoption & Foster Care Estimates (2007)

Adoption: An estimated 65,500 adopted children are living with a lesbian or gay parent.

(No actual count; est. 1.6% adoption rate by G&L households; est. G&L adopt av. 1.3 cren; est. 4.1% of all adopted cren living in G&L households.)

More than 16,000 adopted children are living with lesbian and gay parents in California, the highest number among the states.

Gay and lesbian parents are raising four percent (4%) of all adopted children in the USA.

Same-sex couples raising adopted children are older, more educated, and have more economic resources than other adoptive parents.

An estimated two million GLB people are interested in adopting. More than one in three lesbians have given birth and one in six gay men have

fathered or adopted a child. More than half of gay men and 41 percent of lesbians want to have a child.

Foster Care: An estimated 14,100 foster children are living with lesbian or gay parents. Gay and lesbian parents are raising three percent of foster children in the

United States. A national ban on GLB foster care could cost from $87 to $130 million.

International Status of Adoption by Same-Sex Partners (2007)

Adoption by lesbian and gay partners and/or couples is reportedly allowed by law in at least some circumstances in at least ten Euopean nations (Andora, Belgium, Denmark, Germany, Iceland, the Netherlands, Norway, Spain, Sweden, and the United Kingdom).

It is permitted in at least two other nations outside of Europe with European colonial/historical roots (Israel and South Africa).

It is allowed in some parts of three other largely-European-settled nations (Australia, Canada, and the United States).

The Hague Convention on Inter-Country Adoption leaves allowance/prohibition of trans-national adoption by gay and lesbian couples/partners to each country involved, but is intended to require full and honest disclosure. The Convention leaves recognition of such adoptions to each country. The US implementing legislation does not directly address the issue, the arguably may indirectly require recognition of international adoptions from other countries that have signed the Hague Convention on Inter-Country Adoption.

Public Support for Adoption by Same-Sex Partners in Europe

2003 European Omnibus Survey (ints / 15,000 persons in 30 European nations):

Majority favor SSP Adoption: 4 nationsMajority oppose SSP Adopt: 26 nations

2006 Eurobarometer Poll (for EC):Majority favor SSP Adoption: 2 nations Support for SSP Adopt =<33%: 18 ntns

2. What’s the Harm w/Adoption by Same-Sex Couples and Partners?

• A.Overview of Concerns• Objections to lesbigay adoption fall into four categories: (1) concern for the best interests of children, NOT Let adult

political/personal agenda’s determine adoption policy/decisions

• (2) concern for the institutional integrity of the legal institution of adoption, tarnishing the “gold standard” of adoptive parenting.

• Adoption not typical adversary proceeding but largely ex parte• Social Workers are the “real judges” in adoption• Thus, social workers need to be neutral, independent, unbiased• 1996 study showed that social workers overwhelmingly are

biased, no reflect public values re: mom-day families and lesbigay adoption

• (3) concerns about inappropriate judicial policy-making, and

• (4) concern about the failure to carefully consider alternatives solutions (step/extended family relations) radical all-or-nothing policy revolution.

A.Overview of ConcernsObjections to lesbigay adoption fall into four categories: (1)concern for the best interests of children,

(1)NOT Let adult political/personal agenda’s determine adoption policy/decisions

(2) concern for the institutional integrity of the legal institution of adoption, tarnishing the “gold standard” of adoptive parenting.Adoption not typical adversary proceeding but largely ex parteSocial Workers are the “real judges” in adoptionThus, social workers need to be neutral, independent, unbiased1996 study showed that social workers overwhelmingly are biased, no reflect public values re: mom-day families and lesbigay adoption

(3) concerns about inappropriate judicial policy-making, and

(4) concern about the failure to carefully consider alternatives solutions (step/extended family relations) radical all-or-nothing policy revolution.

Most Current Social Science Studies Are Immature, Defective, and Biased

4 criticisms of social science studies concluding “no difference”1. Methodologically flawed, biased, unreliable 2. Even biased studies suggest potential harm (homo-erotic

identification, attraction, premature sexualization, promiscuity)

3. Defies all theories of child development4. Fail to ask the hard questions (effect on relationships, sex,

etc.)

4 related considerationsa. Expect lesbigay parents to do many things as well as mom-dad

parents such as provide food, clothing, adequate education, etc.b. Those factors are not the concerns in adoption – we provide those

anyway.c. Social science studies about such factors do not help us address

the hard Qs.d. Need to learn about effect on sexual behaviors, interests, of

children –premature or delayed sexual behavior, risky sexual

behaviors, sexual self-identification, fidelity, promiscuity, effect on relationships

are different with parents, siblings, grandparents, future spouses, children.

Narratives of the Inner Lives of Children Give Cause for Concern

Narratives of children raised in lesbigay homes identify 8 concerns:

1. Stability and changing sexual partners

2. Premature sexualization environment and experience (molest taboo)

3. Alcohol & drug use

4. Domestic violence

5. Ignoring needs

6. Silence and intimidation

7. Disease, death and separation

8. Impact on sexual behavior and relations

3. What’s the Harm w/ SSM-CUs?

• No easy sound-bite answer because neither immediate nor obvious– Harm of FLDS polygamous marriages with 14-year-olds? Or Fa-dau marriage?– Like effects of divorce on children (denied in 1960s and 1970s, now recognized) Transformation of the meaning, expectations, and practices of marriage generally.

Distinguish public/private interests; private preferences and public consequencesRecent report: costs of divorce & marriage-avoidance (cbow):

$112 Billion public costs annually for USA ($70 B federal; $42 B state & local)

$1.12 Trillion each decade

Distinguish positivist construct / ubiquitous social institutionAbe Lincoln’s story about the ‘leg.’

Men and women are still different, as is the union of a man and woman (marriage).

Marriage is a critical status and concept used in 1,138 federal laws, unnumbered (even more) federal regulations, and hundreds of state laws in each state. Change the meaning of ‘marriage’ and it will change the application of thousands of federal and state laws

The sky hasn’t fallen!!Three flaws:

1) Shifts B/Proof2) Diverts attention from long-term effects3) Already many harms evident (in MA, Scandinavia, CAN, etc.)

Family Friendly Policies:David Blankenhorn, The Future of Marriage

“Support for marriage is by far the weakest in countries with same-sex marriage. The countries with marriage-like civil unions show significantly more support for marriage. The two countries with only regional recognition of gay marriage (Australia and the United States) do better still on these support-for-marriage measurements, and those without either gay marriage or marriage-like civil unions do best of all.”

The Transformative Power of Inclusion

The qualities of same-sex relationships will redefine the acceptable characteristics and behaviors of marriage

Sexual promiscuity, fidelity, and multiple sex partners2003 AIDS Journal Dutch Study:

• - 86% of new HIV/AIDS infections in gay men were in men who had steady partners.

• - Gay men with steady partners engage in more risky sexual behaviors than gays without steady partners.

• - Gay men with steady partners had 8 other sex partners (“casual partners”) per year, on average.

• - The average duration of committed relationships among gay steady partners was 1.5 years.

• Bell & Weinberg reported that 43 percent of white male homosexuals had sex with 500 or more partners, with 28 percent having one thousand or more sex partners.

• New study: modal range for number of sexual partners ever was 101-500”

• -Kirk & Madsen “the cheating ratio of ‘married’ gay males, given enough time, approaches 100%.”

• -2006 Norway & Sweden: The divorce-risk levels were about 50% higher for registered gay men partnerships than for comparable heterosexual couples, and controlling for variables, the risk of divorce was twice as high for lesbian couples as it was for gay men couples.

• -Swedish registered partnerships found that gay male couples were fifty percent more likely to divorce than married heterosexual couples, while lesbian couples were over 150 percent more likely to divorce than heterosexual couples

• Study of Civil Unions in Vermont: marriage-like status did not significantly reduce lesbian and gay sexual irresponsibility.

• Also, c. 50% more lesbians both in and not in Civil Unions in Vermont had decided that extra-relationship sex was acceptable than married women, and for gay men both in civil unions and not in civil unions it was from 1250% to 1400% higher than for men in conjugal marriages (40.3% and 49.5% compared to 3.5%).

• -AIDS is estimated to have killed over 25 million people worldwide

• - 15 common sexually related diseases besides HIV/AIDS

• Thus, redefining marriage to include gay and lesbian couples will have a profound impact upon sexual morality and public health in society. Sexual standards in marriage will change as homosexual relations will be instantly normalized and equated with marital relations.

• Same-sex marriage undermines parenting and child-rearing.

• Legalizing same-sex marriage will instantly transform the meaning of marriage, spouse, husband, wife, parent, child.

– All Children deserve the opportunity to be raised by a mom and dad.

– Children are not stupid; they recognize deprivation.

• Thus, the attempt to legalize same-sex marriage and to give equivalent legal status and benefits to same-sex couples constitutes a very real and dangerous attack upon the institution of conjugal marriage.

• 4. Legalizing Same-Sex Marriage Will Endanger Civil Rights

• Legalizing same-sex marriage will undermine the civil rights of those who do not approve of or who oppose same-sex marriage.

• - those who oppose same-sex marriage will be simply bigots.

• - Opposition to same-sex marriage be “invidious discrimination”

• -Changing the core definition of marriage in the law will lead to clashes between law and religion.

• Soup kitchens, homeless shelters, hospitals, social services agencies hurt.

• -In Massachusetts Boston Catholic Charities, had to shut down.

• -Olive Branch adoption agency and adoption.com in California

• -

In California: • -a Protestant adoption agency was forced to provide adoption

services to lesbian couples• -an online adoption agency was prohitted for db / Ca families• - suit (CA SCT decision this week) Catholic doctor liable because

declined ART services to a lesbian• -Calif SB 777 and Calif double-standard student put-down case

(“Elsewhere:• -Georgetown University • United States, the Boy Scouts denied privileges and public

facilities.• -Canada, Knights of Columbus was held liable

-Hospital (abortion already, so same-sex marriage, also)• -Educators and schools are vulnerable. • - Massachusetts numerous controversies • - British Columbia, Trinity Western University denied

accreditation Free speech rights have already been abused: effort to “silence”

oppons • -Sweden Pentacostal Pastor Ake Green • -Similar cases have been reported in Canada and England & PA

& OH (administrator at College).• Suit against CDC counselor for referral (‘homophobic’) • - Ireland, ICCL warned that Catholic Bishops and clergy of hate

speech

California “Kristallnacht”

The New Look of “Tolerance” in California

Posted 2 days after Prop 8 passedSource: http://yesproposition8.blogspot.com/2008/11/beauty-of-no-crowds-tolerance.html

http://www.meridianmagazine.com/ideas/081110hate.html

http://www.meridianmagazine.com/ideas/081110hate.html

http://www.meridianmagazine.com/ideas/081110hate.html

http://www.meridianmagazine.com/ideas/081110hate.html

http://www.meridianmagazine.com/ideas/081110hate.html

http://www.meridianmagazine.com/ideas/081110hate.html

http://www.meridianmagazine.com/ideas/081110hate.html

http://www.meridianmagazine.com/ideas/081110hate.html

http://www.meridianmagazine.com/familyleadernetwork/081114tolerance.html (Nov. 24, 2008)

Source: http://yesproposition8.blogspot.com/ and http://www.lifesitenews.com/ldn/2008/nov/08111816.html (seen 081124)

Video Shows Gay 'Marriage' Backers Terrorizing Cross-Carrying Elderly Woman and Reporterhttp://www.lifesitenews.com/ldn/2008/nov/08111010.html

More than mischief: Recent activity on Proposition 8

By Steve Gehrke

The Salt Lake Tribune

Salt Lake TribuneUpdated:11/24/2008 01:17:12 PM MST

• Highlights of recent proposition 8-related crimes:

• Lansing, Mich. » Services at an evangelical church were disrupted by members of an extremist group called Bash Back! An affiliated group claimed it poured glue into the

locks of an LDS church building near Olympia, Wash., and spray painted its walls.

• Riverside, Calif. » Forty to 50 signs supporting Proposition 8 were found arranged in the form of a swastika on the front lawn of a Roman Catholic church.

• San Luis Obispo, Calif. » Vandals poured adhesive on a doormat, key pad and window at two LDS churches and peppered a nearby Assembly of God church with eggs

and toilet paper.

• Sacramento » Ten area church buildings were vandalized, according to The Sacramento Bee.

• Orangevale, Calif. » An LDS chapel sign and walkways were tagged with the phrases, "No on 8" and "hypocrites."

• Arapahoe County, Colo. » The Arapahoe County Sheriff's Office is investigating a case of a Book of Mormon that was set on fire and left burning on an LDS church's

doorstep as a bias-motivated arson.

• Wasatch Front » More than seven LDS churches have had glass doors shattered, six of them by BB gunshots.

• LDS temples in Salt Lake City and Los Angeles » The temples, along with a Catholic Knights of Columbus printing press in Connecticut, all received packages with white

powder substances in the mail.

• Syracuse » A Syracuse Junior High seminary was evacuated after a mysterious letter was sent to the building

• Weber State University » A plastic plant was lit on fire inside a Weber State University Institute building after an evening talk given by LDS Apostle Elder Boyd K. Packer.

• Farmington » Farmington police are looking for a person who spray painted "Nobody is born a biggot" (sic) on a concrete wall outside an LDS church.

• A Torrance, Calif.» A man is charged with a felony hate-crime assault for allegedly using an anti-gay marriage lawn sign to attack a gay man wearing a "No on 8" button

• San Jose, Calif.» Police were called to a house in the southern part of town after homeowners reported their garage had been spray-painted with "No on 8" messages.

The homeowners had signs on their lawn supporting the measure

• Sacramento suburb » Police arrested three teens after finding 53 stolen "Yes on 8" signs in their car

• Salt Lake City » A man reported his lawn sign, opposing the LDS church's role in politics, was set on fire outside his home near 900 East and 900 South

• Sources: The Associated Press and Salt Lake Tribune reports

• At http://www.sltrib.com/News/ci_11062014 (seen 081124)

Recent Letter to IA Legislators from Religious Liberty Experts

• “Sea change” in law and loss of protection for religions and persons of faith

• Two categories of threats – Under ‘anti-discrimination’ statutes and doctrines– As unlawful discriminators and face penalties

LDW article for ISFL Conference in Israel

Examples of conflicts between loyalties (God and State) for institutions and persons of faith

USStates w/ SSM (esp. CA) UKCanada Elsewhere

5. Exporting & Importing SSM, CU, and LGAds: Conflicts of Laws (choice of law, and judgment-

recognition) Issues

What happens when a same-sex couple that married in Massachusetts moves to a state that only recognizes civil unions, or that forbids both SSM and SSCUs (like UT)?

Such conflicts over importation and exportation of controversial domestic relationships (called “conflict of laws”) will dominate future legal arguments about same-sex marriage.

State Appellate or Federal Court Decisions Involving Conflicts of Laws Re: Same-Sex

Domestic Relationships, 2000 - 2007From Jan 2000 to April 2008, 22 federal/state conflicts decisions re: recognition of SSM/CU/Adopt. Ten deny recognition, nine allow recognition, three split. Rate increasing!

General US federal and state rules re: recognition of marriages from other jurisdictions:

General Rule: Marriage valid where performed (S-1), valid everywhere (S-2) – unless it violates the strong public policy of S-2.

 Whether a sister state law violates strong public policy depends on whether it can

overcome the presumption in favor of comity (courtesy/respect) to laws of other sovereign; public policy exception is narrowly construed.

 However, priority for forum policies (lex fori) is a countervailing consideration.  Subjective, ambiguous standards give courts much wiggle room.  Importance of SMAs to cabin judicial manipulation of comity to force recognition.  Importance of federal DOMA (protects right of states to decide for themselves;

neutral).

Importance of DOMA

• Section 2: • 28 U.S.C. 1738C. • "No State, territory, or possession of the United States, or Indian

tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.".

• Section 3: Federal • 1 USCA 7. Definition of 'marriage' and 'spouse' • "In determining the meaning of any Act of Congress, or of any

ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.".

Conclusions?

Conclusions:Be of Good cheer!!We live in the “best of times” despite

the adversity and challenges.We have a great opportunity to “stand

for something.”By becoming informed and by

speaking up appropriately, courageously respectfully, and by refusing to be intimidated or coerced into silence we can make a huge difference.

VIII. ConclusionResources: