MARRIAGE

Below are two testimonies given in October of 2005 before the Senate Judiciary Committee concerning the proposed Federal Marriage Amendment. The first testimony is from Richard G. Wilkins, the Managing Director of the World Family Policy Center and professor of law at the J. Reuben Clark Law School at Brigham Young University.  The second testimony is from Scott FitzGibbon, professor of law at the Boston College Law School. One pointing backward, one forward, together they make a compelling case for supporting the Federal Marriage Amendment. We urge our readers to give thoughtful consideration to the issues concerning marriage and the Federal Marriage Amendment in the United States.

The Question Raised by Lawrence:
Marriage, the Supreme Court and a Written Constitution
Testimony of Richard Wilkins, Professor of Law, Brigham Young University
October 20, 2005

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Testimony In Support Of the Federal Marriage Amendment
Testimony of Scott FitzGibbon, Professor of Law, Boston College
October 20, 2005

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United States Senate Committee on the Judiciary
An Examination of the Constitutional Amendment on Marriage
October 20, 2005
Richard Wilkins*
Professor of Law, Brigham Young University
The Question Raised by Lawrence:
Marriage, the Supreme Court and a Written Constitution

In Lawrence v. Texas, the Supreme Court concluded that state legislatures could not criminalize homosexual sodomy. Many (including Justice Scalia in dissent) noted that Lawrence raises a serious question regarding the future of marriage: Can marriage any longer be defined as the union of a man and a woman? But Lawrence also raises another sober question: Does America still have a written Constitution?

The answers are unknown.

As a result, and depending upon who is speaking, the President and the Senate are either preserving, ignoring, rewriting, or destroying the Constitution each time an individual is nominated or confirmed to the federal bench. Because of decisions like Lawrence, the selection of those who determine “what the Constitution means now” has become one of the Nation’s most contentious political issues. The federal judiciary is no longer the “least dangerous branch,” as contemplated by Federalist advocates such as James Madison and Alexander Hamilton. Rather, the anti-Federalist essayist Brutus, who was fiercely critical of the potential power of the Article III courts, provides a more accurate description of modern constitutional law, where “it is impossible . . . to say” what “the principles are, which the courts will adopt,” except that they “may, and probably will, be very liberal ones” that are not confined to the “letter” of the Constitution.

The views of James Madison and Alexander Hamilton – not Brutus – carried the day in 1789. The Constitution was adopted by a Founding Generation which assumed that, while the document would be subject to amendment and interpretation, the amendment process was vested where it belonged – in the hands of “the People” – with the interpretative process safely left to judges who would apply (but not create) the law. These assumptions of Madison and Hamilton, however, are seriously out-of-place in a world where lawyers, law professors, politicians and even Supreme Court Justices are fixed upon the purported virtues of “a living Constitution” – a Constitution so “alive” that its meaning changes with each new appointment to the federal bench.

How did America’s fundamental political charter become so vaporous that the Nation’s entire political structure trembles each time a new Justice is named to the Supreme Court? The genealogy of Lawrence tells the tale.

Lawrence relies upon a constitutional right not set out in the actual language of the Bill of Rights and the Fourteenth Amendment – the increasingly ubiquitous modern “right of privacy.” This right was first announced by the Supreme Court in its 1967 decision in Griswold v. Connecticut.

The case involved the State of Connecticut’s legislative decision to regulate the use of condoms by married couples – a law that, in the mid-1960’s, was quaint and anachronistic. But rather than wait for the ordinary processes of democratic debate to adjust state policy, the Supreme Court assumed the task of freeing the electorate of Connecticut (and America in general) from a law the dissenting Justices called “silly.” The Court emancipated the country from the bonds of silliness by noting that the Connecticut law regulated the marital relationship, a union between a man and a woman, that was – in the words of the Court – “intimate to the degree of being sacred.” This sacred relationship, the Court concluded, must be supported by a “right to privacy,” even though the Constitution nowhere mentions the right.

The Court did not consider whether its new analysis was consistent with the long-standing history and traditions of the American people. It could not undertake such an analysis because any careful review of actual historical practices would have shown that – however out-of-touch Connecticut’s law appeared in the middle of the 1960’s sexual revolution – states throughout the nation had regulated the sexual conduct of married and unmarried citizens by means of adultery, incest and fornication laws from the dawn of the Republic. The policies animating these laws (as noted by the concurring opinion in Griswold) may have seemed less “silly” in 1967 than a prohibition on condom usage, but adultery, incest and fornication laws are rather hard to distinguish on constitutional grounds from Connecticut’s regulation of marital fecundity. As the dissenting Justices pointed out, nothing in the text of the Constitution invalidated Connecticut’s law simply because it was “unreasonable” or “unwise.”

Because neither the words of the Constitution nor the specific history and traditions of the American people invalidated Connecticut’s law, the Court was required to fashion a new analysis that would set aside the state’s condom policy. Accordingly, the Court announced that the “specific guarantees in the Bill of Rights have penumbras” (or partial shadows) that give the actual wording of the Constitution “life and substance.”

In real life, the substance of shadows (and particularly partial shadows) is questionable and they result from the lack, not the presence, of light. Nevertheless, relying upon dimness, the sacred nature of marriage and the talismanic word privacy, the Court walked away from the specific guarantees of the United States Constitution as well as the history, experience and traditions of the American people. The judicial journey begun in Griswold has now brought into constitutional doubt the “sacred” union of “marriage” upon which Griswold itself rests. As a result, Americans must act – not only to protect the union lauded in Griswold – but to reinstate what Chief Justice John Marshall in 1803 called “the greatest improvement on political institutions” achieved in America: the establishment of “a written constitution.”

Legal scholars applauded the rather startling analysis of Griswold. They wrote elaborate justifications for the use of “privacy analysis” to abolish legislative anachronisms with a minimum of fuss and bother. They paid little heed to Justice Black’s warning that Griswold had dramatically altered the meaning of the Bill of Rights by “substitut[ing] for the crucial word or words” of various constitutional guarantees “another word” – privacy – that could be “more or less flexible and more or less restricted in meaning” than the Constitution’s original text. They similarly ignored the warning that Griswold’s broad notion of a “living Constitution” threatened the very existence of the “written Constitution” lauded by John Marshall.

In the rush to support the purportedly enlightened approach of Griswold, too many Americans – including citizens, lobbyists, lawyers, law professors and judges – seemed to forget that constitutional law involves much more than ensuring “proper” results in particular (even silly) cases. Those who drafted the document viewed the Constitution’s distribution of decision making power between and among the various branches of state and federal government as its most important role; the very foundation of American liberty. Because various results may be “proper” at different times and in different circumstances, the constitutional distribution of decision making power in 1789 was – and remains today – profoundly important.

The Constitution was not drafted to resolve every difficult, troublesome and/or controversial issue of public policy. In the areas where it speaks rather clearly, the Constitution leaves final decision making authority with the judiciary. If state or federal governments exercise power in a manner that encroaches upon core constitutional values (as set out in constitutional text construed in light of the actual practices, experience and traditions of the American people), the judiciary must act to protect those values. But the drafters of the American Constitution believed this judicial role would be exceptional and rarely invoked. As the Federalist papers proclaim, the judiciary is the “least dangerous” branch because judges do not create policy but merely exercise "judgment." The really difficult questions, the Founders thought, were left to the people.

The Supreme Court has departed from the decision making structure established by the Founders on more than one occasion. Prior to Griswold and Lawrence, the most recent period of judicial excess was ended (at least in part) by President Roosevelt’s famous threat to “pack the Court” in 1937. From the late 1890’s to the mid-1930s, the Justices of the Supreme Court invalidated various state and federal legislative judgments on the ground that they unduly interfered with the “liberty” of American citizens. Back then the unwritten freedom that the Court enforced was not privacy, but economic liberty.

In Lochner v. New York, for example, the Court struck down a law establishing a 10-hour workday for bakery employees who labored near hot and dangerous wood- and gas-fired ovens. Why was this seemingly sensible regulation unconstitutional? Because, by setting a limit on the number of hours an employee could work, New York had unduly interfered with the right of free men to negotiate their own terms of employment. In the 1920s, the shadows of the Constitution protected a rather unusual constitutional right indeed: the “right” of New York bakers to work themselves to death.

By 1936, cases like Lochner threatened to invalidate the Roosevelt Administration’s efforts to ease the economic suffering caused by the Great Depression. Various provisions of the New Deal interfered with economic rights highly valued by the Justices. After the Supreme Court invalidated parts of the National Industrial Recovery Act and the Agricultural Adjustment Act in 1935 and 1936, President Roosevelt went on the offensive. Following his election to a second term, in one of his famous “fireside chats,” he threatened in 1937 to appoint a new Supreme Court Justice for each one of the “nine old men” on the Supreme Court over the age of 70. These Justices, the President declared, were “out of touch” with the needs of ordinary Americans, the economic realities of the day, and even the intentions of the Founders. Such a strong message from a popular president prompted Congress to hold hearings on the proposal, but before any changes were made, the Supreme Court abandoned its enforcement of non-enumerated constitutional liberties and the president abandoned his plan to pack the Court.

Between December 1936 and the end of the first quarter of 1937, the Supreme Court made an abrupt about-face. On the heels of President Roosevelt’s challenge, the Court began to implicitly condemn its prior decisions as unwarranted judicial departures from the text of the Constitution. Rather than invalidating legislation because it restricted the unenumerated economic liberties of American citizens, the Court wrote regarding the obligation, duty and privilege of free men and women to govern themselves by debating and deciding difficult questions of social and economic policy. The Court seemingly recalled (and conducted its business pursuant to) Chief Justice John Marshall’s famous dictum in Marbury v. Madison that “the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.”

Throughout the early 1960’s, the Court regularly opined regarding the dangers of enforcing judicially preferred policies, in disregard of the text, structure and history of the American Constitution. Unfortunately, Griswold (and subsequent privacy cases) paid little heed. The contraception law in Griswold was, as Justice Stewart observed, “uncommonly silly” and outdated. But however proper the result in Griswold seemed (and still seems today), the analysis launched by the case encouraged social activists, lawyers, law professors and judges to increasingly ignore that Article III does not establish the federal courts as the perpetual censor of unreasonable legislation or as the ultimate arbiter of all divisive moral controversies.

Most legislative and executive decisions are not controlled (and cannot be controlled) by the presciently precise language of the Constitution. If the “correct” answers to pressing questions are fairly debatable, those questions must be – indeed, should only be – resolved by legislative action. The “correct” answers to such questions as the appropriate level of welfare assistance, the purity of the nation's air, and the sexual conduct of its citizens are fairly debatable and, therefore, left for resolution by state and national legislatures.

This is particularly true when government action involves moral questions. And although it seems almost prehistoric to note that government action implicates moral issues, questions of morality abound in government decision making. The all-too-common contention that “government has no business regulating morality” makes a good sound bite, but not much sense. Governmental decisions always involve striking a balance between competing moral values. To whom should society pay welfare benefits? How much? When? These and thousands of other questions addressed daily by government necessarily will be resolved in favor of one moral view or another. The “right to privacy,” enunciated in Griswold and expanded in cases thereafter, has rendered the American legal system increasingly oblivious to the reality that debatable moral and ethical questions are poor candidates for judicial resolution.

Following Griswold, the privacy right supposedly founded on the “sacred” institution of “marriage” was extended to unmarried couples, a substantive result that (again) sparked little disagreement. But the Court’s expansion of privacy to include abortion in Roe v. Wade revealed how easy it is for judges to stumble when walking through constitutional shadows. Roe starkly revealed the kinds of questions the Court (rather than the people) would decide under the penumbral “right to privacy.”

The Roe Court took pains to explain that abortion was particularly well suited for judicial resolution precisely because it involved (among other things) “the difficult question of when life begins;” a question upon which the Court need not “speculate as to the answer.” But, despite this disclaimer, the Court announced that a woman could terminate the life of an unborn child for any (or no) reason at any time prior to the point when the child could live outside the womb. By providing a speculative response (“life,” or at least legally cognizable “life,” begins at “viability”) to a question the Court purportedly did not need to “answer,” the unusual contours of the a-constitutional right of privacy at last drew significant attention. Philosophers, ethicists and many Americans recognized that the utilitarian reasoning of Roe raised a host of disconcerting questions. For the first time since Griswold, many Americans paused. It seemed the Court might, too.

Roe forced America (and the Court) to confront whether the Constitution, in fact, mandates judicial resolution of social controversies precisely because they are moral, divisive and difficult. The legal academy that had nurtured privacy analysis and warmly welcomed Griswold now rushed to rewrite and re-explain the Supreme Court’s astonishing decision. Thousands of pages in the law reviews were dedicated to sophisticated (and often incomprehensible and contradictory) justifications for Roe’s elimination of democratic debate and decision making at the very moment they were needed most. These obviously post hoc apologetics embarrassed the Court and for many years the Court was hesitant to lengthen the shadows of Griswold.

Indeed, in the 1986 opinion in Bowers v. Hardwick, the Court avoided the right to privacy altogether and looked (at long last) to the language of the Constitution and the teachings of long-standing American traditions and history. Because there is nothing in the language of the Constitution that directly addresses the question, Bowers concluded that states could decide whether or not to regulate homosexual conduct, even if the chosen course seemed prudish, silly or outdated. The right to privacy did not dictate a contrary result, the Court noted, because human sexuality involves debatable questions of morality that have been regulated for centuries – and might warrant regulation today. The Bowers Court also noted that homosexual behavior, unlike that involved in Griswold and Roe, “bear[s] [no] resemblance” to “family relationships,” “marriage,” or procreation.”

Even Roe underwent a transformation during this momentary waning of privacy analysis. In the 1992 decision of Planned Parenthood v. Casey, the Supreme Court pointedly did not reaffirm the reasoning of Roe v. Wade. As the dissenting Justices noted, the controlling opinion for the Court could not “bring itself to say that Roe was correct as an original matter.” Caught in a difficult gap between Roe’s faulty logic and its refusal to reject Roe’s result, the Court resorted to stare decisis – a doctrine which provides that a legal question, once decided, remains decided. Roe may have gotten it wrong, the Court announced, but right or wrong the decision would stand. It looked like the right to privacy had itself become penumbral.

But, at least in constitutional law if not in real life, never underestimate the compelling substance of partial and incomplete shadows. The decision in Lawrence v. Texas demonstrates that the Court has recovered from the bout of judicial modesty it suffered between Bowers and Casey. The penumbra of privacy is back.

Roe didn’t get it wrong after all. Rather, it is Bowers (and the hesitant approach of Casey) that are constitutionally suspect. Bowers, in fact, is reversed. Lawrence declares that the reasoning of Bowers – that family, marriage and procreation are sturdy enough social interests to overcome the judicially created right to privacy – is fatally flawed. According to the Court, Griswold was wrong, too. Forget all that talk in 1967 about the “sacred” nature of the “marital union;” privacy (following the Court’s further consideration) has nothing at all to do with marriage, procreation, or the bearing and rearing of children. Instead, privacy vests sexual partners with a constitutional entitlement to determine their “own concept of existence, of meaning, of the universe, and of the mystery of human life.” And under this “concept of existence” and “mystery of human life” clause, government may not “demean” consenting adult sexual behavior.

Accordingly, society may have no business making any distinction between a marital union of a man and a woman and a sexual partnership between two men, two women or (why not?) three men and four women. If marriage is “sacred” (as Griswold declared) can society “demean” other sexual relationships under Lawrence by suggesting they are not? Furthermore, can a state even require sexual fidelity between spouses? If it does, doesn’t that “demean” individuals whose “meaning of the universe” includes “open marriage”? Probably. Thus, marriage may no longer mean a man and a woman, two people, sexual exclusivity, or exclude partnerships between close relatives.

Thus, through the questionable logic of legal reasoning purposely freed from the tethers of the actual language of the United States Constitution and American tradition, a purported right which sprang from the centuries' old social institution called marriage may soon become that institution’s very undoing. No wonder Justice Scalia notes that Lawrence “leaves on pretty shaky grounds state laws limiting marriage to opposite sex couples.”

Following Lawrence, the Massachusetts Supreme Judicial Court relied upon the reasoning of the Supreme Court’s opinion to hold that the Massachusetts Constitution, although nowhere discussing or addressing the matter in its actual text, demands official recognition of same-sex marriage. In reaction to Lawrence and the Massachusetts decisions, voters in 11 states last November amended their state constitutions to define marriage as the union of a man and a woman. This unusual action by states ranging in political views from Mississippi to Utah to Oregon does more than prevent state courts from invoking privacy (or other judicial innovations) to redefine marriage – it also demonstrates the growing unease of Americans with expanding state and federal judicial power. Americans are becoming aware that, over the past 40 years, the judiciary’s increasing disregard of constitutional strictures has deprived them of the ability to answer many of the political questions that affect them most. Marriage is just one of the more recent questions the judges are about to take from the hands of American voters.

As a result, more than marriage is on shaky ground. So is America’s “greatest improvement on political institutions:” the idea of “a written constitution.”

The reasoning in Lawrence erodes democratic control of debatable – and unquestionably difficult – issues of moral concern. By substituting a potentially far-reaching (and as yet undefined) “concept of existence, of meaning, of the universe, and of the mystery of human life” test for the actual text of the Constitution, Lawrence seriously erodes the ability of American citizens to engage in open and honest political discussions regarding the outcome of an unknown range of fairly debatable moral controversies. Such questions – ranging from cloning and biomedical research to euthanasia and children’s rights – involve some of the most pressing issues of modern life.

After Lawrence, which democratic judgments in these areas will survive the new (and apparently individualistic and idiosyncratic) “concept of existence” and “mystery of human life” test? Who can tell? Will the long-standing definition of marriage as the union of a man and a woman withstand judicial analysis? No one knows – although the Massachusetts Supreme Judicial Court’s invocation of Lawrence suggests that the answer is “No.”

Throughout America, ordinary citizens, lawyers, law professors, legislators and judges obviously disagree regarding the meaning of marriage. The existence of this deep disagreement, however, demands that the people be allowed to vote on a Federal Marriage Amendment to express their constitutional views regarding the meaning, content and social role of Griswold’s sacred relationship.

Marriage is an essential and long-standing social institution with profound importance for the social health of American society. Furthermore, while it is unclear what impact judicial redefinition of marriage might have on American society, there is surprisingly general agreement that further debilitation of marriage in America would be dangerous indeed. The meaning and social role of marriage is too important – and the current health of the institution too fragile – for its meaning and future vitality to be determined by the oligarchic votes of as few as five Members of the Supreme Court. As Abraham Lincoln warned in his First Inaugural Address: “if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation . . . , the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

Accordingly, at the end of the day, Lawrence raises a fundamental question regarding the constitutional process for defining marriage in America. The pressing issue is whether the People or the Court should decide the outcome of a debatable, divisive, difficult – even transcendent – question of social morality. The Supreme Court’s decision in Lawrence portends that the meaning of marriage will soon be removed from the realm of democratic debate, adjustment, compromise and resolution. This is a serious, and profoundly suspect, matter of structural constitutional law.
America in 2005 faces the question President Roosevelt confronted in 1936 and 1937: When the precise words of the Constitution, considered in light of the country’s constitutional traditions, do not provide an indisputable answer for the resolution of a contentious moral, ethical and political question, who charts the Republic’s course? The People or the Court? This is the question raised by Lawrence.

All Americans should care how it is answered.

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Testimony
United States Senate Committee on the Judiciary
An Examination of the Constitutional Amendment on Marriage
October 20, 2005
Scott FitzGibbon
Professor of Law, Boston College
TESTIMONY IN SUPPORT OF THE FEDERAL MARRIAGE AMENDMENT
October 14, 2005

If I were drafting a slogan to assist opponents of the Federal Marriage Amendment in summarizing a key element in their position, I might suggest, “no big deal.” (Or perhaps, “no great matter for national attention.”) This slogan puts into a nutshell the cluster of assertions which have it that same-sex marriage initiatives are of importance only to those couples who may seek a same-sex-marriage license, do not have much effect on others, are of local or statewide interest exclusively, and do not merit national concern.

I am a resident of the only American jurisdiction which has adopted same-sex marriage. As a professor who writes and teaches on the subject of marriage, I have had occasion to examine the situation in Massachusetts and also in other jurisdictions which have legal provisions establishing same-sex marriage or similar institutions. The most obvious effects concern legal status: in Massachusetts, more than six thousand same-sex couples obtained marriage licenses during the first year of availability (about 20% of all licenses during that period). But my testimony is not primarily about the direct legal consequences; instead it relates to the social and moral effects that have begun to emerge. I am here to testify that these consequences are a significant matter and that they ought to raise grave concerns, both at the local and at the national level.

The practice of licensing same-sex couples as married has been in place in Massachusetts for only seventeen months. Plainly at this early moment we can only begin to surmise the full consequences of a development whose effects are sure to unfold across generations. We can, however, detect the fact that developments to date have been rapid and continue to accelerate in several important sectors of the social order. This testimony identifies several of these developments, in Massachusetts and also to some extent in other jurisdictions which have traveled a similar path. It concludes that these developments are neither small nor exclusively local and that they merit the concern and attention of the nation as a whole.


I. THE SOCIAL AND MORAL CONSEQUENCES OF THE RECOGNITION OF SAME-SEX MARRIAGE

The decision of the Supreme Judicial Court in Goodridge v. Department of Public Health brought about the recognition of same-sex marriage (hereinafter referred to as “SSM”) in Massachusetts effective in May of 2004. As the effective date approached, Thomas W. Payzant, Superintendent of the Boston Public Schools, issued a memorandum to the Boston School System. This memorandum is attached as an exhibit to this testimony. It states that “[t]his is a historic moment in our Commonwealth and in our country” and that the Goodridge decision “has had, and continues to have, a profound impact on our civil life and discourse.”

1. Effects in the Public Schools. – One sector in which this effect is already pronounced is that of education. As Superintendent Payzant’s memorandum states, the “profound impact” of same-sex marriage “filters through our society and our schools.”

As it filters through the schools it suppresses and chills debate and discussion. Superintendent Payzant in his memorandum warns grimly that he has “received some reports of inappropriate . . . speech.” He continues:

“It is important at this time, therefore, to reiterate our zero-tolerance policy, and to reinforce a message of respect for the law and for the differences and choices represented among our school population.

“Administrators, teachers, parents and students are reminded that no action or speech will be tolerated that results in harassment, discrimination, bias or intimidation toward any member of our community for any reason, including his/her sexual orientation or perceived sexual orientation. We urge school staff to report and act promptly on any incidents that may create a climate of intolerance in our schools. Such incidents will be considered a serious violation of the BPS Code of Discipline and of accepted standards of professional behavior, and will result in discipline up to and including expulsion of the responsible student or termination of the offending employee.”

After this, what would you advise a teacher who was conducting a class discussion? What would you advise a teacher who was advising a student with concerns about his social life? Observe: “no . . . speech will be tolerated that results in … discrimination [or] bias.” A teacher would take her career into her hands by encouraging an examination of the cons as well as the pros of SSM, or even of same-sex activities outside of marriage. The way the memorandum is drafted, she violates the rules even if she has no bias; all she need do is say something that causes someone else to develop bias. If the teacher says nothing at all, she still may have to worry about an obligation to blow the whistle if one of her students says something unpleasant (“report and act promptly on any incidents that may create a climate of intolerance”). And as to advising a student about concerns in his social life, the mind boggles. He better not exhibit bias in the way he conducts it.

Beyond chilling discussion and debate as to the negative aspects and the contra-SSM position, the effect of this social movement is to encourage the introduction of vivid and sometimes graphic presentation of various sexual practices. The following is an excerpt from the National Public Radio program All Things Considered in which an eighth-grade teacher in a public school in the Boston area testifies:


“[Teacher] In my mind, I know that, `OK, this is legal now.' If somebody wants to challenge me, I'll say, `Give me a break. It's legal now.'

“SMITH: And, [she] says, teaching about homosexuality is also more important now. She says the debate around gay marriage is prompting kids to ask a lot more questions, like what is gay sex, which [she] answers thoroughly and explicitly with a chart.

“[Teacher]: And on the side, I'm going to draw some different activities, like kissing and hugging, and different kinds of intercourse. All right?

“SMITH: [She] asks her students to fill in the chart with yeses and nos.

“[Teacher]: All right. So can a woman and a woman kiss and hug? Yes. Can a woman and a woman have vaginal intercourse, and they will all say no. And I'll say, `Hold it. Of course, they can. They can use a sex toy.

. . . [A]nd we talk--and we discuss that.”

The effect of the Goodridge decision has been to encourage the indoctrination of public school students in the merits of legalization of SSM. Thus Superintendent Payzant’s memorandum exhorts the Boston Public School teachers to use “this historic moment” as:

“[An] opportunity to help our students understand it as a vital manifestation of some of the principles that have shaped our system of government – such as rule of law, balance of powers, and separation of church and state – as well as another step in our continuing efforts to create a more just society for all of our citizens.”

In other SSM jurisdictions, similar pressures have been felt:

“In the wake of Canada's legalization of same-sex marriage, a human-rights complaint has been filed in British Columbia alleging the absence of pro-homosexual instruction in public schools is a denial of equal treatment.

The development underscores the concerns of same-sex marriage opponents in the United States who argue legalization would force schools to teach about homosexual behavior as a positive, alternative lifestyle for children.

Murray and Peter Corren, who were given a marriage license last July, concede the province-wide curriculum is not anti-homosexual, but complain its omissions have the effect of ‘enforcing the assumption that all people are or should be heterosexual.’

"‘Basically, there is systemic discrimination through omission and suppression of queer issues in the whole of the curriculum,’ said Murray Corren in an interview with the Vancouver Sun.

“Corren, an elementary school teacher in Coquitlam, B.C., said that with the legalization of same-sex marriage, the education ministry needs to update its approach to issues surrounding homosexuality.

"‘[The issues of same-sex marriage and gay rights] are going to come into the classrooms, whether people like it or not,’ Corren told the Sun. ‘It's a fact, it's a reality now in Canada.’

“Corren says the province's social studies curriculum refers to aboriginals, women and multiculturalism, but has no mention of what Corren defines as the ‘queer population,’ the Vancouver paper said.

“He wants that changed to include: ‘Queer history and historical figures, the presences of positive queer role models . . . the contributions made by queers to various epochs, societies and civilizations, and legal issues relating to [lesbian, gay, bisexual, transgendered] people, same-sex marriage and adoption.’”

2. Effects as regards Parental Authority over Education. – Inevitably initiatives such as those described above bring school administrators into conflict with concerned parents. This sort of conflict is vividly illustrated by the case of David Parker, a father who became concerned when he found that his five-year-old son had been given a book which dealt with same-sex parenting as part of the educational program of the Lexington, Massachusetts Public School system. School officials refused to assure Mr. Parker that he would receive notice before his son was exposed to further presentations along these lines. Discussions apparently broke down; Mr. Parker refused to leave; officials called the police; and Mr. Parker was arrested and spent the night in jail. And, in a less dramatic confrontation which did not result in an arrest, Newton parents were ejected from school grounds where they were recording a “gay pride” presentation.

It would be incorrect to say that those of us who have children in Massachusetts public schools go about in fear of arrest, but it is the case that same-sex-relationship educational programs lead almost inevitably to a situation of tension and adversity between teachers and school officials, on the one hand, and those numerous parents who adhere to ethical beliefs and belong to religious communities which disfavor those practices, on the other. The situation bears close comparison with that of abortion, which, like same-sex marriage, was imposed by the courts against the wishes of many Americans, and in conflict with the religion and morality by which most citizens have been guided, and which has therefore been made available through school clinics without parental involvement.

Under those circumstances, the incentive is great for school systems to be reticent or less than candid about their programs. Last year the reporter for the local newspaper, the Newton Tab, was ejected from among those observing a “gay pride” presentation on the grounds of a Newton, Massachusetts school. And ensuing upon the Parker arrest, school official William J. Hurley wrote to Parker: “'If you are found on Lexington public schools' properties you will be subject to arrest by the Lexington police . . . . Access to school properties can only be accomplished with prior written authorization from the superintendent of schools or his designee." More recently, the Lexington Superintendent of Schools has issued a memorandum which acknowledges that

“some parents have requested they be notified whenever their child has access to any material, conversation, or activity that acknowledges differences in sexual orientation, including any reference to families with same-gender parents”

but then goes on to rule that:

“[S]taff has no obligation to notify parents of discussions, activities, or materials that simply reference same-gender parents or that otherwise recognize the existence of differences in sexual orientation. Accordingly, I expect teachers to continue to allow children access to such activities and materials to the extent appropriate to children’s ages, to district goals of respecting diversity, and to the curriculum.”

It is not unlikely that just as courts have extended the right to abortion to the point of striking down parental consent laws, so also they might extend a right to same-sex relationships to the point of striking down provisions protecting a parent’s access to information and a parent’s right to influence school activities in this area. The Federal Marriage Amendment would help protect against this further erosion of parental rights.

3. The Deconstruction of the Intellectual and Social Definition of Marriage. -- More fundamentally, the Goodridge decision and others like it project what might almost be called a theory of marriage, or at least a certain “take” on how to think about that institution and what it means. That “profound impact on our civil life and discourse” to which Superintendent Payzant portentously referred would include an impact not only on practice but on thought and belief as well.

The marital morality of Goodridge and other same-sex marriage authorities displays several important features. The first might be called “positivism”: the view that things all come down to the mandates of the State. The Goodridge court announced:

“[T]he terms of marriage – who may marry and what obligations, benefits, and liabilities attach to civil marriage – are set by the Commonwealth.”

“[T]he government creates civil marriage.”

Statements like these close the door firmly on the nonpositive roots of the institution of marriage and on nonpositive, extra-state authorities for defining and understanding it; sources widely relied on in judicial authorities until recent decades, namely custom, nature, tradition, and religion. Indeed, statements in some SSM cases bluntly excoriate the marital beliefs of the citizenry. “[R]ooted in persistent prejudices,” concludes the Goodridge court. “[R]epugnant,” states an Ontario court. “[L]ike it or not,” a Hawaii court announced, “constitutional law may mandate … that customs change.”

The second feature of the SSM authorities might be called “deconstruction.” This feature arises from the circumstance that Massachusetts has adopted no comprehensive definition of marriage, either as a matter of the common law or as a matter of statute; people here generally understood what marriage meant through custom, tradition, religion, and morality. Goodridge called everything into question, put everything up for litigation and challenge, and closed the door on the most obvious bases for reaching a solution. Marriage is something defined by the state, we are told; but then the state does
not define it.

A third feature of some judicial authorities in this area is a derogatory attitude towards moral normativity. The Goodridge court referred to the desirability of “defin[ing] the liberty of all, not . . . mandat[ing] our own moral code.” Justice O’Connor’s concurring opinion in Laurence v. Texas seeks “other reasons . . . to promote the institution of marriage beyond mere moral disapproval of an excluded group” (turning, instead, to “state interest”). Note that this third feature is not merely an extension of the first: it seems to be not only social morals, or religious morals, or objective ethical morals which are to be avoided, but even positive, legal moralizing (“our own” moral order). Fixed standards of conduct are to be generally suspect, it seems, and subject to derogation when they conflict – as they almost always do – with liberty very broadly defined as ““the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Law survives only in those (undefined and shifting) circumstances in which it serves the “interests” of the state.

The fourth feature, inevitably, is confusion and the possibility of infinite malleability in the meaning and conduct of marriage, both socially and as a matter of law. “[C]ivil marriage,” the Goodridge court announces in its opinion, “is an evolving paradigm.”

Last summer in Toronto, two heterosexual men, still heterosexual, each still interested in finding a woman to love, decided to take advantage of that jurisdiction’s SSM law and marry one another. (For the tax advantage, they said). They have been advised by counsel that they are eligible to do so. SSM authorities say little or nothing about the purposes and activities which couples need to perform or intend.

Not only SSM but also heterosexual marriage and the terms which define the traditional family tumble into this post-modern void. The barriers between marriage and cohabitation collapse. The furthest extension to date may appear in a recent provision in Ontario where the legislature, under the prodding of a judicial mandate to revise marriage-related terminology in its statutes, has redefined “spouse” to include people who are not married. See Bill 56 (2004), amending the Employment Standards Act to make the term “spouse” include:

“either of two persons which . . . live together in a conjugal relationship outside of marriage.”

Your spouse might be someone you are not married to? The ultimate social consequence of the SSM authorities may be the destruction of the sense of the ridiculous.

The trajectory leads on to the recognition of all sorts of “pair-bonded” structures -- including those intended to be temporary rather than permanent. It implies the “nonjudgmental” attitude recommended by a sociologist:
“[Policymakers] could attempt to create policies to support and help people in what ever type of social structures they create, giving equal credence and respect to divorced and married people, cohabiting and married couples, to children born out of wedlock and children born to married couples, and to married and unmarried parents.

“. . . [S]ocial policies need to support people as they enter into, reside within, and move to whatever pair-bond structures fit their needs and goals. . . . Social policies must be based on respect for people’s right to choose . . . to live . . . within any particular pair-bond structure.”

And there seems to be no reason why only pairs should be supported and recognized. Polygamy – the absurdity to which SSM advocates resisted being reduced in argument even a year or two ago – has recently come to be treated by leading authorities as eligible for legal recognition. A respected Boston columnist sees it on the horizon. The head of the ACLU now favors its protection.

4. The Degradation and Destabilization of Marriage. – As legal authorities and social policy makers lose their grasp on any coherent and common understanding of marriage, that institution forfeits its definitive status as a matter of general opinion and social practice as well. Marriage becomes harder and harder to distinguish from nonmarital cohabitation. Custom, tradition, and religion may be ruled out as determinative and the slight definitive language in the SSM authorities is unhelpful. Both kinds of relationship are based on “choice.” The most vivid example is afforded by the Ontario amendment, quoted above, which makes one of the Ontario statutes define “spouse” to include people who are not married.

In Denmark, where SSM-type provisions have been in place for many years, cohabitation is now a “normatively accepted option.” The practice has increased in frequency.

5. The Degradation and Destabilization of the Family. – In America and other countries, cohabitation often leads to family turbulence and parental split-ups. Authorities note:

“Fully three-quarters of children born to cohabiting couples are likely to see their parents split up before they reach age sixteen, whereas only about a third of children born to married parents face a similar fate.”

“Cohabiting is not the functional equivalent of marriage. . . . Children with cohabiting parents have outcomes more similar to the children living with single (or remarried) parents than children from intact marriages. . . . Couples who live together . . . report relationships of lower quality than do married couples – with cohabiters reporting more conflict, more violence and lower levels of satisfaction and commitment.”

Following parental split-ups, children are often raised by reconstituted couples, preponderantly by their biological mother and her new partner. “A large body of social scientific evidence now shows that the risk of physical or sexual abuse rises dramatically when children are cared for in the home by adults unrelated to them, with children being especially at risk when left at home with their mothers’ boyfriends.”


II. RECOGNITION OF SAME-SEX MARRIAGE IS AN APPROPRIATE SUBJECT OF COMMON CONCERN AND ACTION BY THE AMERICAN PEOPLE, AND NECESSITATES ADOPTION OF THE FEDERAL MARRIAGE AMENDMENT.

When one state licenses same-sex unions the consequences inevitably flow over to the others. This is most obviously the case with regard to direct legal consequences. Same-sex partners change residence and litigation ensues as to family-law issues. The following passages from a news story in the Washington Post illustrate such a situation:

“It is a painfully familiar story with a modern twist: A young couple fall in love, exchange vows and become parents. They later decide to part, with the custody of the child left for a court to determine.

“Lisa Miller and Janet Jenkins were joined in a civil union in Vermont in 2000, merged their last names, and two years later moved from Virginia to this small town in the western part of the state to begin a new life.

“Today they are embroiled in an acrimonious tug of war over a 2-year-old girl named Isabella, a case that legal experts say is the most significant custody battle to emerge since same-sex civil unions were established here four years ago and a test of the viability of marriage laws that vary from state to state.

“With more than 7,000 gay couples having formed civil unions in Vermont since 2000 and thousands more married in Massachusetts since such unions became legal there in May, what happens to children when such relationships end is an unsettled legal question. Opponents have long argued that relationships sanctioned by some states and not others make for legal chaos and confusion.

“’This is the first of what I imagine will be a long train of cases for gays and lesbians all over the United States testing the idea of whether legal rights they've won in certain states are going to be recognized in other jurisdictions,’ said Joseph R. Price, an attorney for Janet Miller-Jenkins and the chairman of Equality Virginia, a gay rights advocacy group.”

When a single state or a small minority of states gets off the same page as the rest of the country as regards who is married and who is not, the dislocation and disorder extends beyond specifically legal areas and becomes a matter of social discontinuity as well. In the custody dispute described above, Vermont social-action groups on both sides of the issue have weighed in, with at least one of them engaging in a major fundraiser over the matter. It is a social conflict which, just as attorney Price is quoted as predicting, is likely to be fought out in “a long train of cases for gays and lesbians all over the United States.”

When a state gets off the same page as the rest of the country as regards fundamental marital and sexual morality, and comes to indoctrinate children in ways that are anathema elsewhere; when a state begins to exclude or even prohibit the presentation of opinions which are not only acceptable but common and commonsensical in the minds of the rest of the country; and when a state goes even further along the road and develops a morality and jurisprudence of marital relationships which is unstable and divergent from tradition, it is appropriate to bring the matter forward for national discussion and common resolution. A nation cannot maintain a coherent social order while operating two marital systems.

This testimony has laid out in detail some of the social and moral changes which are ensuing upon the recognition of same-sex marriage in Massachusetts and other SSM jurisdictions. This should show some of the reasons why the United States of America needs the Federal Marriage Amendment.

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