Same-sex marriage, an overview
October 20, 2004
Legal Status of Same Sex Unions - Overview
On May 17, 2004 Massachusetts became the first and only state in the United States where same sex marriage is legal. For a full site about the Massachusetts situation from a legal perspective, see http://www.lawlib.state.ma.us/gaymarriage.html In November 2003, the Massachusetts Supreme Judicial Court held that not allowing same-sex couples to marry violated the state constitution, and in February 2004 that court further held that a "civil union" law would not be acceptable. A constitutional amendment to deny same sex couples the right to marry cleared the first vote in the Massachusetts legislature on March 29, 2004. It must clear the second vote no earlier than March of 2005 by that same legislature. If it passes that test, the soonest it could be voted on by the people is November 2006. In addition, same-sex couples from at least 27 states have been “married” in Massachusetts, thus creating standing for further litigation challenging the federal DOMA and the individual state marriage laws. These marriages of out of state same sex couples have been ruled to be against Massachusetts law ( see http://www.cnn.com/2004/LAW/08/19/same.sex.mass.ap/index.html ). There are at least 22 lawsuits pending in 12 states from same-sex couples suing for complete marriage rights.
Interestingly enough, the Full Faith and Credit clause of the U S Constitution probably will probably not be successfully used to force states to recognize marriages performed in Massachusetts or anywhere else ( see http://www.law.yale.edu/outside/html/Public_Affairs/455/yls_article.htm for a short article on the topic. )
Same sex domestic partnerships of some sort are recognized in Vermont, Hawaii, Maine, New Jersey and California ( where the full domestic partnership law will take effect in January 2005 ). Vermont is the strongest in that it recognizes civil unions, and did so as of July 1, 2000. Maine joined this list at the end of July, 2004 ( see http://www.planetout.com/news/article.html?2004/04/29/2 ). 19 states and the District of Columbia give same sex couples at least some benefits. In Washington state, on August 4, 2004 a state judge ruled that same sex marriages were legal in the state, in spite of the state DOMA ( the DOMA was ruled to be against the Washington state constitution ). His decision is stayed until the Washington state Supreme Court reviews the case, meaning no marriage licenses can be issued until then. He ruled, not surprisingly, that the state of Washington could not show a compelling interest to deny same sex marriages. The full ruling can be found at http://www.metrokc.gov/kcsc/docs/Andersen%20v.%20Sims.pdf .
42 states currently have passed or are part way through passing, either as laws or state constitutional amendments, DOMA ( Defense of Marriage Act ) laws. Seventeen of those states have DOMA as part of their state constitution.
The Heritage Foundation has an excellent resource page on state defense of marriage laws at:
Individual State Information
* Indicates a state constitutional amendment has been passed defining marriage between one man and one woman.
Louisiana's amendment was thrown out because it violated their state constitution ( see http://www.cnn.com/2004/LAW/10/05/gay.marriage.ap/index.html ), but was reinstated by an appeals court decision. Eleven proposals to amend their state's constitution were passed by the voters in November 2004 - Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon and Utah. The amendments in Utah, Arkansas, Georgia, Kentucky, Michigan, North Dakota, Ohio and Oklahoma, in addition to defining marriage as between a man and a woman, also outlaw domestic unions. Note that similar language in Nebraska's DOMA amendment is being challenged in federal court ( it appears to be in direct violation of the Romer v Evans US Supreme Court ruling. ), and immediate appeals in the six states that mirror Nebraska's wording will surely be filed quickly. All three candidates for Utah state attorney general opposed the amendment in a very rare joint statement. Almost every Christian church in Utah, except the Mormon church, opposed the amendment. The Mormon church, just two weeks before the vote, put out a statement supporting the amendment. 3 states have passed constitutional amendments, but have processes that require passage of an amendment by two consecutive legislative sessions before it can go to the voters: Massachusetts, Tennessee and Wisconsin must consider their amendments again next session.
Same sex marriages have been performed in San Francisco California ( 3955 couples ), New Paltz New York ( 19 couples ), Ithaca New York ( possibly one couple ), Multnomah County ( Portland ) Oregon ( 3022 couples ), Asbury New Jersey ( 1 couple ), Oklahoma ( 1 couple, see http://www.cnn.com/2004/LAW/08/21/cherokee.same.sex.marriage.ap/index.html for the Indian tribal ruling on future gay marriages ), and Sandoval County New Mexico ( 26 couples ). None of these sites currently perform same sex marriage. Interestingly, most Indian tribes have historically allowed same sex couples to wed ( see appendix 6 ). In almost all of these sites, cases are now pending to recognize or not recognize the same sex unions already performed, and to resume or halt the same sex marriage process ( see http://www.keepmedia.com/pubs/AFP/2004/08/12/526052?nbdTopicID=3 for the ruling that says that San Francisco's gay marriages were performed in violation of state law. Note also that cases are pending challenging the constitutionality of state law in this area ). For the timeline of what has occurred in the past year or so, see Appendix 1. The Attorney General of Oregon has issued an official opinion that he believes that his state constitution demands recognition of same sex unions ( see http://www.doj.state.or.us/pdfs/AG_samesexopinion.pdf ), and the Oregon courts have ruled that the 3022 same sex couples are legally married. A judge has ruled in Washington state that not allowing same-sex marriage in that state violates the state constitution. He stayed his opinion until his state's supreme court can rule. An article on his ruling can be found at http://www.keepmedia.com/pubs/AFP/2004/08/04/521321 .
Laws outlawing sodomy were ruled null and void by the Lawrence and Garner vs the State of Texas US Supreme Court ruling. To read that ruling, see http://news.findlaw.com/hdocs/docs/scotus/lwrnctx62603opn.pdf
In 1996, Congress passed, and President Clinton signed, the
Defense of Marriage Act which stated that the federal government would not
recognize same sex marriage. In August, 2004 a Federal judge in Tacoma,
Washington ruled the 1996 Defense of Marriage Act constitutional. The United States Senate, in July of 2004,
failed to pass a proposed constitutional amendment that would have prohibited
same sex marriages. A motion to cut off debate and force a vote was
defeated 50 - 48. The United States House of Representatives defeated
the amendment on September 30, 2004. Clearly, the vote is being held
just for political election purposes, and is not a meaningful amendment. Six Republicans abandoned their leadership on this vote, indicating that the
amendment was not well thought out. There have been approximately 11,000 attempts to amend
the US Constitution, and all but a few have rightfully failed. The
Senate amendment stated "Marriage in the United States shall consist only of the
union of a man and a woman. Neither this Constitution, nor the Constitution of
any State, nor State or Federal law, shall be construed to require that
marital status or the legal incidents thereof be conferred upon unmarried
couples or groups." The Senate and House vote was a defeat for the Republicans
who basically brought it up to vote in order to embarrass Democrats, but
instead were embarrassed themselves in the Senate when 6 Republicans joined 43 Democrats and
one Independent and defeated the call for closure. Attempts to bring
another more acceptable amendment to the floor was stopped on procedural
grounds. Bush, the current US President, has stated support to such a federal
amendment outlawing gay marriage, but is against an amendment outlawing civil
unions, Vice President Dick Cheney does not support such an amendment to outlaw
gay marriages. For Bushes current statement ( against a federal amendment
outlawing gay civil unions ), see http://www.nytimes.com/2004/10/26/politics/campaign/26gay.html?oref=login&oref=login&pa
On July 23, 2004, Republicans passed legislation in the House, 233-194, to prevent federal courts from ordering states to recognize same-sex unions that took place in other states. Democrats objected to the bill as an unconstitutional attack on gays and the federal judiciary to satisfy the GOP's political base. This bill, if passed by the Senate and signed by the President, will surely be ruled unconstitutional. This is a pure election year attempt to incite certain voters and embarrass certain candidates.
In Canada, seven provinces and one territory have recognized same sex unions with court rulings starting in 2002. The Supreme Court of Canada has stated that it is OK with them if there are same sex marriages ( see http://www.cbsnews.com/stories/2004/12/09/world/main660070.shtml and http://www.cnn.com/2004/WORLD/americas/12/09/canada.gay.ap/index.html ). In all likelihood, the legislature will take up the issue, and the probability of its passage is considered high.
In 2001, the Netherlands became the first country to open civil marriage to same-sex couples. Belgium became the second in 2003. For a more complete list of international laws, see below.
Traditionally, marriages performed in non-US countries are recognized in the US.
The United States Supreme Court has twice stepped into marriage issues with big bold moves.
The 1878 Reynolds decision, for instance, banned polygamous marriages in the territories, specifically including Utah, a territory at the time. Since 1878, using Reynolds, the Federal judiciary has assumed broad powers in the “moral” area. It might deserve comment that Brigham Young, John Taylor, Wilford Woodruff, Joseph F. Smith, and almost every Mormon church president up well into my lifetime have bemoaned the Supreme Court Reynolds decision because they firmly taught that the marriage arrangement was an individual state issue, and not one for the federal government. In the past years, there is some indication that the Supreme Court’s love of Reynolds is waning, and Reynolds might easily be decided differently if it were decided today.
In 1967 the Supreme Court in Loving vs. the State of Virginia outlawed the anti-miscegenation laws on due process grounds( see http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=388&invol=1 for the decision ). Simply speaking, the state cannot unduly discriminate by race or ethnicity, and possibly other protected classes, in the area of marriage. In 1967, 16 states still had laws on their books that prohibited inter-ethnic marriage, such as “whites” and “blacks”, and in some states “whites” and Japanese, or “whites” and Polynesians, and in some states "whites" and Hispanics.
The first such anti-miscegenation law was passed in 1661 in Virginia. At one time or another, 41 states had anti-miscegenation laws of some form on their books. All of them prohibited intermarriage between whites and blacks ( by various definitions ), and at least fifteen of them prohibited intermarriage between Asians and whites ( Arizona, California, Georgia, Idaho, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, Oregon, South Dakota, Utah, Virginia, and Wyoming ). In addition, twelve states prohibited intermarriage with American Indians, nine with Filipinos, in at least one state intermarriage with Hindus was illegal, and in Oregon intermarriage with Hawaiians was illegal. In 1948, the California Supreme Court became the first state to overthrow these odious laws. The laws were not completely repealed in individual states until November 2000 when Alabama became the last state to repeal its law. Today, in California, over 13% of all marriages are inter-ethnic, and would have not allowed in at least some states a half century earlier. As a note, the Supreme Court of the United States had previously affirmed anti-miscegenation laws in 1883 ( Pace v Alabama ), 1955 ( Jackson v Alabama ) and 1956 ( Naim v Naim ). American Indians were, in several areas, classified as black ( and thus denied the Priesthood by my fellow Mormons ), and Hispanics were not defined as whites in many states. Shortly after 1900, in two counties in Virginia, including Amhearst County Virginia where my ancestors left in the late 1700s and early 1800s, the entire county was declared "black", and thus could not have any of the civil liberties denied to blacks. This included any of the county who looked white, and steps were taken to label as black anyone who had moved out of the county to other parts of Virginia.
The US Supreme Court touched the edge of marriage issues in their 1997 Romer v Evans decision ( see http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=u10179 for the full ruling ). In this decision, the court, in it’s wording, said that laws could not be passed that were passed strictly to deny homosexuals their rights.
And, recently, the US Supreme Court ruled again on the edge of the marriage issue in Lawrence and Garner vs the State of Texas decision ( see http://news.findlaw.com/hdocs/docs/scotus/lwrnctx62603opn.pdf for the text of that ruling ). In this decision, the court said that the states could not intrude into the individual adult decision as to how and with whom and in what manner they had sex.
International legal status of gay marriage
Belgium: Legalized gay marriage in 2002.
Britain: Plans to introduce legislation soon authorizing civil unions giving gay couples legal recognition with most of the rights enjoyed by married partners.
Canada: Considering legislation to legalize gay marriage. Same sex marriage legal in six provinces and one territory because of court rulings.
Denmark: The first country to legalize same-sex unions in 1989, later giving couples adoption rights. Other Nordic countries followed in the 1990s.
France: Allows civil unions since 2000.
Germany: Introduced civil unions in 2001.
Italy: Does not recognize same-sex unions.
The Netherlands: Became the first country to legalize gay marriages outright in 2001.
Portugal: Lesbian and gay couples who live together acquire the same rights as heterosexuals in common-law marriages.
Spain: Like most Roman Catholic countries, Spain does not recognize gay unions. But some northern regions, such as Navarra and the Basque country, recognize gay common-law couples and accord them rights of spouses.
South Africa: Recognized gay rights in its constitution after apartheid ended in 1994. Activists are preparing litigation to have the common law definition of marriage extended to include same-sex couples.
Switzerland: Its largest city, Zurich, started recognizing registered gay couples last July. Geneva also recognizes same-sex couples, although grants them fewer rights. Swiss authorities are considering whether to introduce a national law to harmonize treatment throughout the country.
for more details
I firmly believe that “marriage is a personal relationship arising out of a civil contract between a man and a woman”. I believe it with all my heart. And this is the exact wording of California Family Code section 420. It has been on the books in one form or another in this state for a century or so. I would oppose any attempt to change that law to legalize same sex marriage in the State of California.
I wrote the above paragraph in January of 2000 a little more than a month before the California electorate voted on Prop 22. It was my stance then, and it is my stance now. To me, as a dedicated Mormon, with the current climate in my Christian church of choice, there is no other stance to take.
I also firmly believe in the US Constitution and its almost absolute protection of minorities. The Supreme Court Santa Fe Texas school district decision of several years ago was just one more example of why minorities must be protected, particularly in religious areas.
The difficulty of course is that the two a priori assumptions above are at odds with one another. We Mormons, as a small minority in a very large diverse state, should endeavor to guarantee the homosexual community their constituted rights and yet preserve the institution of marriage as we know it. In California, a decreasing number – possibly a minority - of the electorate oppose homosexual marriage.
At this time the United States constitution allows a state to permit same-sex marriages, but the constitution might not demand that a state do so. It is clear that some state constitutions, such as Hawaii ( before their constitution was amended ), Alaska ( before their constitution was amended ), California, Massachusetts, and Vermont, demand equal status of some nature for same-sex relationships. Oregon Circuit Judge Frank Bearden ruled that the 3022 same sex marriages performed earlier in Multnomah County ( Portland ) were legal, and ordered the state legislature to correct the problem of the denial of gay rights - in agreement with Judge Bearden, the Oregon Attorney General has given as his opinion that Oregon’s constitution demand that Oregon allow same-sex marriage. This ruling and opinion were made moot in November 2004 when Oregon amended its constitution to deny gays the right to marry. In California, the state filed and won a case stopping the city of San Francisco from performing and more gay unions beyond the ones already performed. Vermont fulfilled this requirement by passing a very broad-reaching domestic partnership law, giving same-sex marriages rights and responsibilities approximately equal to heterosexual marriages, and their supreme court ruled that this was sufficient for their state. When the state supreme courts in Hawaii, Alaska, and Massachusetts decided that the states had to recognize homosexual marriage unless a state constitutional amendment was enacted, such an amendment was passed in Hawaii and Alaska, and is in process in Massachusetts. It should also be noted that among other states Vermont, California and Hawaii have domestic partnership laws. California’s domestic partnership law will be greatly expanded in January 2005. Gay marriages were also performed in Sandoval County New Mexico, Asbury Park, New Jersey, and New Paltz, New York, but were stopped after a short time.
On Monday, May 17, 2004 Massachusetts was the first state to legally perform gay marriages.
It is not clear whether the California constitution, or the United States constitution, would demand at some future time that those who wanted same sex marriages would have the right to receive them. Simply speaking, no successful same-sex marriage argument has been made to a California or Federal court in this area. In my opinion, such an argument, successful in Massachusetts and basically successful in Vermont, will also be successful in more states during my lifetime. Others disagree.
It is also not clear whether the California constitution, or the United States constitution, would demand that same sex marriages performed in Massachusetts, or any other state allowing same sex marriages, would demand that such marriages be recognized in California.
That being said, an argument can be sustained that the state should not be in the marriage business at all. The Prophets of my Mormon polygamous ancestors certainly held that view. Government sanctioning of marriages is a rather late development, first starting in the 17th century.
Religious sanctioning of marriage dates back to the same century, in spite of certain conservative commentators stating otherwise.
For most of the history of marriage, it was legally nothing more than a social contract between two male clan leaders to cement their relationship by declaring two of their descendents to be married. During the past two centuries in this country, marriage slowly evolved through such a social contract into a contract between the two individuals. It was not until the middle of the 20th century that the last state in the United States finally allowed women to do “manly” things like own property – before that the woman was considered property of the man.
California Prop 22
California’s Prop 22 was a very contentious issue. It was composed, in essence, of two parts. The first part basically repeated California Family Code Section 420 in stating that a marriage was between a man and a woman. The second part stated that California would only recognize marriages performed in other states if they were between a man and a woman. It is this last part that this section addresses.
The second part of Prop 22, as the Mormon Area President at the time stated, appears to be unconstitutional. He, in my research, is correct. It might run afoul of the full faith and credit clause, as he noted, though this is not likely. It most likely runs afoul of the equal protection clause and the 14th amendment. Specifically, it appears to violate both Romer v Evans and Loving vs. the State of Virginia, and it might violate the ruling in Lawrence and Garner vs the State of Texas.
It should be noted that this section of Prop 22 could not be tested until someone with standing came forward. This has now occurred, but the California case has not been heard nor ruled upon.
The question for informed California voters, including Latter-day Saints, was whether or not to support and vote for an unconstitutional law. There were many reasons to vote for or against Prop 22. When a local columnist wrote that anyone who supported Prop 22 was a bigot, the local Mormon leadership asked me to craft a reply. I wrote that reply, basically a call for tolerance. It was printed in the paper before the election, taking the editorial page for that day. It gave dozens of reasons to vote for or against the proposition. Local politicians and the original columnist both wrote letters of thanks to me for my letter.
A poll was conducted by a reputable national polling firm.
Since the March 2000 Prop 22 election produced a 61% - 39% landslide, one might ask what happened. Exit polls give some clue. The vast majority of voters under 30 voted against Prop 22. The vast majority of voters over 55 voted for Prop 22. A primary reason for the discrepancy in the poll versus the actual vote is that older voters vote in larger percentages, particularly in primary elections. Almost any poll, therefore, will show more same-sex marriage positive results than an election might produce.
In essence, as time goes on, there will be likely be more and more support for same-sex marriage and Domestic Partnership laws because of the age disparity for support – essentially, as the older pre-Vietnam War era dies off, the younger set will make up an increasing number of a the electorate. The case can be argued that the time to pass a constitutionally valid law that outlaws same-sex marriages performed in other states from being recognized in California is past. Certainly if this trend of favoring same-sex marriage continues, such an argument is valid.
This strong swing, from an 18% gap ( 57% to 39% ) in 1999 to an 8% gap in 2000 is almost unprecedented for such an issue. Today ( 2004 ), that gap is the other direction. The key to understanding this swing is to analyze the election itself. The pro Prop 22 side campaigned as if the vote was some final jihad. This side used, according to sociologists, a slogan that appealed to a negative base emotion. “Protect Marriage” appeals to the base instinct of fear. After the election, that fear is over, of course, and was replaced by other emotions, most of them unhealthy. The Anti Prop 22 side viewed the battle as just that – one small battle in a very long war. On the whole, the anti-Prop 22 side more often used calm logical reasoning and education as its tactics. The pro-Prop 22 side used an emotion-laden slogan.
In my opinion, there are also two other troubling results of the election that are of note. The Republican Party in California is rapidly becoming a very small party at the state level in California. They have only one statewide elected official, a very popular Democrat who ran as a Republican in a Governor recall election. In the last election, almost all elected Democrats favored same-sex marriage or Domestic Partnership or both. Only a few Republicans did. This should be very troubling for those who oppose same-sex marriage. Simply speaking, the support level for same-sex marriage might not matter if state legislature is overwhelmingly Democratic. The second result is even more troubling to me personally. During the election, as previously noted, a slogan that evoked fear was used. The campaign was run and PR’d by a non-Mormon group, but the funds for the pro-Prop 22 side came overwhelmingly from LDS church members. Because of the funding, many of the negatives from this campaign flowed to the church. While the church continually tried to say that they were pro-family and not anti-homosexual, this message has not yet prevailed in California.
Where do I go from here?
A friend wrote the following two paragraphs on Election Day in 2000. They are just as true today.
First, in my opinion, we must all quit judging God’s creations. Stuart Matis, a gay Mormon, died two weeks ago. Despite the fact that Stuart was a righteous person, many still unrighteously judged him for how he was born. For that, and probably many other reasons, he saw that his only escape was the route he chose - suicide. Judgment is God's, not mine, and not yours. Judgment isn't any of my business. The mentality of thinking that somehow homosexuality is a giant mistake, a major flaw, a trick of nature, indeed, a monumental interference by Satan in God's eternal plan, creates and perpetuates the pain and anguish of homosexuals, and indeed of all of us. I am reminded of a quote from H. Wallace Goddard, which says "Years ago Heavenly Father taught me that I did not have the right to correct anyone I did not love. That seemed reasonable enough. Little did I realize the trap at the time. When I feel genuinely loving toward someone, I lose interest in correcting them. I just want to love and bless them."
Second, lets celebrate all of God's creatures. Lets do away with our old thinking of exclusion, our old thinking that the only way to heaven is to become white, to become heterosexual, to be married, to have a large family. The wonderful soft kind words of homosexual "acceptance" in our church has not, as of yet in my opinion, gone beyond “acceptance”, though I hope and pray that it will. In my view, we must do as the Savior did, to invite all people, specifically including homosexuals, to our gospel feast, dressed as they are, to treat them as valued members of God’s society. Lamanites do not have to become white and delightsome to be members of God’s kingdom, and neither do blacks – we now accept them for what they are. As individuals, we should do the same for others who do not fit in the church’s mainstream.
I could not have stated it better.
A few comments on the generic issue
The interesting question is why
homosexuality is singled out for particular denigration. As an example, would
women be as likely to abort left-handed children as homosexual sons? I suspect
not. Does homosexual relationships have more issues than heterosexual
relationships outside of marriage? Surely not. Many Americans have
strong feelings about the badness of homosexuality that they don't about
sinister ( left )-handedness or about unmarried heterosexual couples, or
children born out of wedlock. Why?
11/18- Massachusetts Supreme Judicial Court rules state constitution guarantees equal marriage rights for same sex couples
1/20- State of the Union address: President Bush says we must “defend the sanctity of marriage”
2/4- Massachusetts S.J.C. answers question posed by the Senate, whether civil unions would be considered constitutional (no)
2/12- San Francisco, CA - Mayor Gavin Newsome authorizes city officials to issue marriage licenses to same sex couples, marries couples himself
2/20- Sandoval County, NM - County Clerk issues licenses, approx. 26 couples marry in front of the courthouse
2/20- New Mexico Attorney General issues opinion that same sex marriage is illegal in NM (invalidating marriages? not yet clear)
2/24- President Bush announces support for federal constitutional amendment
2/27- New Paltz, NY - Mayor Jason West begins performing same sex marriages (no licenses- in NY, city clerks are not authorized to issue licenses)
3/1- Ithaca, NY - Mayor Carolyn Peterson begins accepting marriage license applications from same sex couples and forwarding them to the state
3/2- New Paltz, NY Mayor charged with 19 counts of marrying people without a marriage license (a misdemeanor)
3/3- Multnomah County (Portland), OR - County Attorney issues legal opinion that county rules violate state constitution, Chairwoman Diane Linn orders rules changed, marriage licenses granted to same sex couples, couples marry
3/3- New York Attorney General Eliot Spitzer issues opinion that same sex marriage is illegal in NY because of “husband and wife” and “bride and groom” language in statute, but that same sex marriages from elsewhere must be recognized
3/5- New York Judge bars New Paltz Mayor from performing same sex marriages for one month, West says he will abide by judge’s decision while “considering legal options”
3/8- Seattle, WA - Mayor Greg Nickels signs an executive order that the city shall recognize same sex marriages among municipal workers and extend all the benefits of heterosexual spouses
3/8- Asbury, NJ - Deputy Mayor James Bruno solemnizes the marriage of two men who applied for a license
3/9- San Jose, CA - City council votes to offer identical benefits to all married city employees, extending better benefits to married same sex employees than were available under the city’s domestic partnership registry
3/9- New Jersey Attorney General warns Asbury city officials that they face prosecution on misdemeanor charges of issuing invalid marriage licenses and marrying people without licenses
3/10- Asbury, NJ city council votes 5-0 to stop issuing marriage licenses and performing weddings for same sex couples, and to file a lawsuit seeking a court opinion
3/11- California’s Supreme Court orders immediate halt to San Francisco same sex marriages and agreed to hear a case on the legality of those proceedings in May or June
3/11- Massachusetts’ Legislature votes to amend the state constitution to ban same sex marriage but allow civil unions
3/23- New Mexico judge issues a temporary restraining order to prevent the Sandoval County Clerk from issuing more marriage licenses to same sex couples- the case is scheduled to be heard on April 2
3/24- Benton County, OR stops issuing marriage licenses to all couples until the state decides the same sex marriage issue, in order to “treat everyone in the county equally”
3/29- Massachusetts’ Legislature votes a second time to amend the state constitution to ban same sex marriage but allow civil unions (must vote two more times before the amendment is considered approved for the session)
4/20- Oregon circuit court judge orders halt to same sex marriages in Multnomah County, saying a state Supreme Court ruling is needed on the issue, but orders the state to recognize the 3,000 same sex marriages already performed there
4/20- California’s Assembly Judiciary Committee passes bill that would allow same sex marriage, the first legislative body to do so, but the legislation must pass the full Assembly before going to the Senate
4/20- Massachusetts lawmaker begins proceedings to have the four Supreme Judicial Court justices who formed the majority in the Goodridge case fired
4/26- Massachusetts Governor’s top legal counsel tells state justices of the peace to resign if they are unwilling to officiate at same sex marriages next month
4/27- Thirteen Massachusetts legislators file suit with the Supreme Judicial Court claiming it did not have the power to legalize same sex marriage
5/13- Federal judge rules against plaintiffs in Massachusetts case seeking to block same sex marriage
5/14- First U.S. Circuit Court of Appeals (Boston) refuses to immediately block same sex marriage, but agrees to hear case in June
5/14- U.S. Supreme Court declines to block municipal clerks in MA from issuing marriage licenses to same sex couples
5/17- Same sex couples begin marrying in Massachusetts
7/13- Takoma Park, MD City Council
7/13- New Paltz, NY
7/14- U.S. Senate
7/22- U.S. House of Representatives approves legislation that would prohibit federal courts from overturning parts of the federal Defense of Marriage Act
8/3- Missouri voters approve amendment, adding language to state constitution that “to be valid and recognized in this state a marriage shall exist only between a man and a woman”
8/4- Washington Superior Court Judge rules the state’s Defense of Marriage Act unconstitutional
8/12- California Supreme Court rules that San Francisco government officials "exceeded their authority" when they legalized same-sex marriages earlier this year, nullifies the marriages
8/17- Federal judge in Tacoma, Washington rules the 1996 Defense of Marriage Act constitutional
8/18- Massachusetts Superior Court judge declines to issue preliminary injunction against 1913 law that prevents out-of-state couples from receiving marriage licenses if the marriage would not be recognized in their home state
8/20- Louisiana Civil District judge rules unconstitutional the vote on proposed state constitutional amendment banning same sex marriage (scheduled for Sept. 18th)
8/23- Michigan's Board of State Canvassers votes to keep proposed constitutional ban on same sex marriage off the ballot in November
9/2- Louisiana Supreme Court dismisses three appeals that would block the September vote on a constitutional amendment, vote will go forward on the 18th
9/7- Washington Superior Court judge in Thurston County rules state ban on same-sex marriage unconstitutional, the two Superior Court rulings will be combined in an appeal to the state Supreme Court
9/10- New York Supreme Court justice rejects the idea of invalidating more than 250 same-sex marriages
9/18- Louisiana voters approve constitutional amendment
9/30- U.S. House of Representatives votes against federal constitutional amendment banning same-sex marriage
10/5- Louisiana District Judge nullifies recently adopted constitutional amendment, ruling the issue was not properly and legally presented to voters
Appendix 2 - A few notes on compelling interest
In 1993, the Hawaii Supreme Court ruled three gay couples had been denied marriage licenses on the basis of their gender and ordered the state of Hawaii to show a "compelling state interest" against same-sex marriage. In 1996, Hawaii lost its case in Circuit Court.
To be specific, the state had to show that " the burden will rest on [Defendant] to overcome the presumption that HRS 572-1 is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights."
( for the complete ruling, see http://starbulletin.com/96/12/03/news/ssruling.txt ).
Judge Kevin Chang ruled Hawaii failed to meet the "compelling interest" standard when it offered weak and strongly disputed evidence that gay marriage would harm the state's children. Chang stayed the decision pending appeal to the state Supreme Court.
In 1997, Hawaii lawmakers approved a "reciprocal beneficiaries" plan which gave couples some 60 enumerated rights previously restricted to married couples. They also approved a November 1998 special referendum asking voters directly if they would approve an amendment to the Hawaii constitution allowing legislators and not the courts to decide who is eligible for marriage under state law.
Hawaii voters in November 1998 overwhelmingly adopted the amendment. Final tallies on Amendment 2 showed 69.4 percent favored allowing state lawmakers, and not the courts, to define marriage. Only 28 percent voted against the ballot issue.
The eight-year court battle ended in December 1999, when the the state Supreme Court justices said the lawsuit seeking to legalize same-sex marriage was made "moot" by voter ratification of a 1998 constitutional amendment authorizing the legislature to reserve marriages to opposite-sex couples.
The challenge was exactly the same ( and almost identical wording to boot ) in Massachusetts. See http://news.findlaw.com/wp/docs/conlaw/goodridge111803opn.pdf page 17 ( top ). And, the state failed to meet that test.
That Alaska had to meet the same test ( and it also failed to do so ) can be seen at http://www.waf.org/familyarchives/marriage/Alaska%20gay-marriage%20ruling.htm where it says Government intrusion into the choice of a life partner encroaches on the intimate personal decisions of the individual. This the Constitution does not allow unless the state can show a compelling interest "necessitating the abridgement of the. . . constitutionally protected right."
It also can be seen in the conclusion where it says The parties are directed to set necessary further hearings to determine whether a compelling state interest can be shown for the ban on same-sex marriage found in the Alaska Marriage Code/
Also, please note that a Washington state judge has ruled that his state's constitution demanded same-sex unions be recognized, but stayed his opinion until the state Supreme Court could rule. It was based on the state not being able to show a compelling interest against same-sex marriage.
For the Lawrence and Garner vs State of Texas decision, see http://news.findlaw.com/hdocs/docs/scotus/lwrnctx62603opn.pdf . Scalia's comments that this opens the door to polygamy, same sex marriage, and the like can be found at the bottom of page 35 and the top of page 36. The majority disagrees, as can be seen on page 22.
To see how Roe vs Wade plays into this, see page 8. The bottom of page 14 deals directly with the religious morality and the law part of this discussion ( my comment "secular non-religious grounds" above ). The Steven dissent to Bowers on page 21 ( and it is well written ) addresses the same "morality" situation - the court in Lawrence adopted Stevens' dissenting opinion in Bowers. The Casey case is discussed on page 17, and Evans vs Romer on page 18.
And, once more, you might want to look at O'Connors brilliantly written majority concurring opinion which attacks the Bowers problem in a different way, a method that did not achieve the majority approval.
Appendix 3: A few notes on the official views of The Church of Jesus Christ of Latter-day Saints
7 July 2004
First Presidency Issues Statement on MarriageThe First Presidency of The Church of Jesus Christ of Latter-day Saints issued the following statement today. This is a statement of principle in anticipation of the expected debate over same-gender marriage. It is not an endorsement of any specific amendment.
"The Church of Jesus Christ of Latter-day Saints favors a constitutional amendment preserving marriage as the lawful union of a man and a woman."
First Presidency Statement on Same-Gender Marriage
"We of The Church of Jesus Christ of Latter-day Saints
reach out with understanding and respect for individuals who are attracted to
those of the same gender. We realize there may be great loneliness in their
lives but there must also be recognition of what is right before the Lord.
The above was taken verbatim from the official LDS church web site
This is the third time that the church, to my knowledge, let its wishes be officially known on United States Constitutional amendments about marriage ( though it has been the one of the most active church on political matters in the United States ).
The first time the LDS church became involved in United States constitution and marriage rights debate was during the Smoot hearings. It was clear that my ancestors were not going to stop marrying polygamously, even after 1890. In 1904, members of Congress proposed "passing [a] constitutional amendment providing that Congress shall be given exclusive jurisdiction over all matters pertaining to marriage and divorce..." The church vigorously opposed this proposed amendment, saying that states should have the right to determine who could marry whom, and how many. The proposed amendment never came to a vote in Congress, mainly because the Mormons finally started the process to stop polygamous marriages, a process that took most of the rest of the decade to complete. The last time this amendment was proposed by members of Congress was in 1921.
The second time the Mormon church took a stand on marriage and amendments to the US Constitution was the Equal Rights Amendment. Note that the answers to question 9 and question 14 in the official LDS brochure on their stance on the ERA bear directly on the same sex marriage issue. The answer to question 14 states, in very direct language, the reason I personally do not favor amending the US constitution to prohibit same sex marriage. It states "Recognized constitutional authorities state that the Equal Rights Amendment would represent a serious eroding of the powers of states and would result in a massive transfer of legislative power dealing with domestic relations from the states to the federal level. "
This is not the only activity of the church in relation to same sex marriage. They were very active in the Hawaii and Alaska campaigns against gay marriage, spending $1.1 million of church funds on the effort. The church HQ has been extremely active in Vermont, California, Massachusetts, Arizona, and Texas on the same issue. Church members have been disfellowshipped and threatened if they did not fully support the church in these efforts, as they were over ERA.
The church made extensive efforts to be part of the legal procedures in Hawaii in the same-sex marriage debate and legal maneuvers. In that state, they officially supported domestic partnerships. They did nothing in California to oppose the extensive same sex domestic partnership law passed there. They opposed domestic partnerships in Vermont, Connecticut, and Massachusetts.
Recently, it seems that the church has backed away from getting involved in same-sex marriage activities. In at least one state, the following letter from Mormon church headquarters was read from the pulpit in September of 2004.
"No actions in support of measures to define marriage are presently authorized for Church officers or Church units. Of course, members are free to participate in such activities as private citizens. But they must not do so in any way that expressly or by implication suggests Church endorsement of, or opposition to, such measures."
On October 24, 2004, in that same state, Dr. David Sumner of Linfield College, an inactive LDS ( to use his phrase ) was visited by his LDS ecclesiastical authorities about his stand against the Oregon DOMA published in July, and was pressured to "support the Prophet" and change his stance.
Also note that the Oct 19, 2004 message is clearly meant to influence the Utah election where a poorly written DOMA amendment is on the ballot. The July message was clearly issued to influence the vote in the US Senate of a poorly written amendment that was defeated.
The following can be found by going to www.lds.org and doing a search on Equal Rights Amendment ( it was published as a part of the official church magazine ).
The Church and the Proposed Equal
Frequently Asked Questions about the
“Frequently Asked Questions about the Proposed Equal
A Closer Look,”
In 1870, fifty years before the passage of the Nineteenth Amendment to the Constitution granting suffrage to women, the women of Utah received the right to vote.
According to Church doctrine, men and women are as one—completely necessary to each other’s eternal exaltation. This fundamental belief is eloquently stated by Elder John A. Widtsoe, a former member of the Quorum of the Twelve:
“The place of woman in the Church is to walk beside the man, not in front of him nor behind him.
“In the Church there is full equality between man and woman. The gospel … was devised by the Lord for men and women alike. Every person on earth, man or woman, earned the right in the pre-existent life to come here; and must earn the right, by righteous actions, to live hereafter where ‘God and Christ dwell.’ … The privileges and requirements of the gospel are fundamentally alike for men and women. The Lord loves His daughters as well as He loves His sons. …
“This makes individuals of man and woman—individuals with the right of free agency, with the power of individual decision, with individual opportunity for everlasting joy, whose own actions throughout the eternities, with the loving aid of the Father, will determine individual achievement. There can be no question in the Church of man’s rights versus woman’s rights” (Improvement Era, Mar. 1942, p. 161).
In other words, women, as well as men, are individual agents responsible for the lives they lead, and they are accountable to God, according to eternal laws.
President Spencer W. Kimball has reaffirmed, “The scriptures and the prophets have taught us clearly that God, who is perfect in his attributes of justice, ‘is no respecter of persons’ (see Acts 10:34). … We had full equality as his spirit children. We have equality as recipients of God’s perfected love for each of us” (Ensign, Nov. 1979, p. 102).
The Church recognizes that there have been injustices to women before the law and in society. Where specific laws or practices discriminate against women, members are counseled to work energetically for appropriate change.
The ERA is the proposed Twenty-seventh Amendment to the United States Constitution. Different versions of an equal rights amendment have been considered by Congress since 1923. On 22 March 1972 a Congressional resolution proposed the current equal rights amendment, without allowing any moderating amendments which would have provided for reasonable exceptions (see question 16, p. 14). Congress specified that ratification by three-fourths of the states should take place within seven years of that date. In 1979, that ratification deadline was extended to 30 June 1982.
The Equal Rights Amendment reads, in its entirety, as follows:
Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3: This amendment shall take effect two years after the date of ratification.
Proponents of the ERA have cited two basic reasons for its passage. First, when this version of the ERA was introduced in Congress in 1971, its sponsors stated that there were then far too many sex-discrimination laws on the books at local, state, and federal levels to ever be effectively taken care of on a law-by-law basis. Second, ERA proponents also claimed that sex discrimination had not been adequately prohibited by court interpretations under the existing Constitution, specifically the equal protection clause of the Fourteenth Amendment.
“Only a Constitutional Amendment, with its massive legal, moral and symbolic impact, can provide the impetus for the necessary changes in our laws,” stated Common Cause, an organization working for ERA passage (The Equal Rights Amendment: A Report on the Proposed 27th Amendment to the Constitution, position sheet, p. 1; italics added).
Based on the Fourteenth Amendment, court rulings in recent years have prohibited sex discrimination while allowing for reasonable distinctions. The guaranty of equality contained in the U.S. Constitution is found in the first section of the Fourteenth Amendment. The precise language is: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”
The courts have clarified that the Fourteenth Amendment’s equal protection clause prohibits gender-based discrimination. The standard is that “to withstand constitutional challenge, classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives” (Craig v. Boren, 429 U.S. 190 (1976)).
Under that standard, many laws drawing classification lines based on sex have been held unconstitutional, including laws preferring men over women in the administration of estates (Reed v. Reed, 404 U.S. 71 (1971)), laws requiring servicewomen, but not servicemen, to prove their spouses are financially dependent in order to obtain certain benefits (Frontiero v. Richardson, 411 U.S. 677 (1973)), and laws making the age of majority for women eighteen and for men twenty-one (Stanton v. Stanton, 421 U.S. 7 (1975)).
This means that distinctions made on the basis of sex already receive careful judicial scrutiny, and can be made only where there is strong justification that the distinction is a legitimate one. This allowance recognizes important differences between the sexes, differences that would probably not be recognized under the ERA, in light of its language and legislative history. In addition, the ERA could jeopardize existing rights and protections.
They have. In fact, even the National Commission on International Women’s Year, a strong supporter of ERA, reported to the President in 1976 that “the Congress has adequate authority now to enact any legislation to end legal discrimination” (“… To Form a More Perfect Union …”, p. 377).
Here is just a partial list of the existing laws which prohibit discrimination, on the grounds of sex, in virtually all areas of American life—education, employment, credit eligibility, housing, public accommodation: The Equal Pay Act of 1963, the Civil Rights Act of 1964, the Health and Manpower Training Act of 1971, the Equal Employment Opportunity Act of 1972, the Comprehensive Employment and Training Act of 1972, the Small Business Act of 1972, the Housing and Community Development Act of 1974, the Federal Employees Compensation Act of 1974, executive orders issued by the President, and many state laws.
This means that under the Constitution, without the proposed amendment, laws can be changed—and have been changed—to rectify wrongs and meet needs as they become evident. Needed changes can be made now, without waiting for passage of the ERA, which would not take effect until two years after its ratification. In addition, making changes now would avoid the time-consuming litigation that would inevitably follow ratification.
No. Here are the reasons why it would not:
First, because the ERA would remove no law from state codes. Discriminatory laws that still exist must be scrutinized and removed by state legislatures or as individuals bring suit in federal courts.
Second, some inequities in society are the result of attitude. Most of these inequities are already covered under law, yet they continue to occur. Additional laws will not change the inequities that exist in society as a result of these attitudes.
Third, the Equal Rights Amendment does not purport to deal with anything other than governmental discrimination, and governmental discrimination is already prohibited by the Fourteenth Amendment. The ERA would not touch discrimination by nongovernmental entities until specific implementing legislation is passed at state or national levels. Such legislation is already authorized.
Former assistant U.S. Attorney General Rex Lee, currently dean of the Brigham Young University Law School, has stated:
“In all the debates over ERA in which I have participated, I have yet to hear anyone suggest a single discriminatory law, which a majority of Americans would want repealed, that would not already be unconstitutional under the Fourteenth Amendment.”
Morals have to do with standards of right and wrong. We believe that, for many social issues in contemporary society, God has given applicable moral standards of right and wrong. These time-proven principles are important to us as a religious people. Previous First Presidency statements have identified some of the areas where issues of morality are involved, such as failure of fathers to care for their families, elimination of statutory protection for women and children, problems resulting from women in the military, homosexual and lesbian activities, abortion, and similar concerns (see pp. 9-11, 12-13).
Recently Rabbi Sol Roth, vice-president of the Rabbinical Council of America, observed that for much of the religious community, the Equal Rights Amendment presents a serious challenge:
“On the one hand, we endorse enthusiastically the application of the principle of equality to every segment of society. But on the other, we are deeply concerned that, if passed, ERA will be implemented in ways that will collide with moral and religious ideals to which we are equally committed” (New York Times, 12 Dec. 1978, p. A-22).
One California attorney has assessed the moral effects of the ERA as follows:
“The basic concern of the Church with regard to the ERA as a moral issue is that women will be treated less favorably in many fundamental regards; and also that the family unit—in the Mormon sense of a sacred and eternal relationship—will be denigrated, causing great and substantial damage to not only the Church but also the nation and the basic ideals which have made this country great” (Keith Petty, letter, 31 May 1979).
It is in the ERA’s impact on family relationships (see question 11, p. 10) that we find its most disturbing moral ramifications. As Elder Neal A. Maxwell has said:
“There is an ecology in human nature which is just as real as the ecology in nature. When we violate the ecology of nature, we are learning more than ever that there are certain consequences that follow. So it is with human nature. The other institutions of society depend upon the institution of the family; to alter the family is to alter society.
“It is in the family that we not only first, but best, learn, if we do learn, those very attitudes and skills upon which our whole nation depends. …
“It is in the family we best learn to work, to love, to forgive, to be committed to justice” (“Choosing the Good Part,” speech, Palm Beach, Florida, 23 Mar. 1977).
The moral obstacles associated with the ERA are overwhelming; they require our firm conclusion that the ERA is a serious moral issue and its passage could significantly affect the standards of right and wrong that are vital to us as a religious people. In some cases, trends are already in motion in society to bring about the troubling changes listed above. We feel the ERA would accelerate these trends.
There is a direct link between the ERA and permanently granting the right to abortion on demand. Significantly, this link was pointed out by Sara Weddington, the attorney who argued and won the 1973 Supreme Court abortion case. In testimony before the Senate Subcommittee on Constitutional Amendments, she said: “It seems to me that what the ERA is all about is trying to say that women should have full choices about how their lives are spent and what their life’s plan is. And yet, when you say to women, ‘we will give you all those choices through ERA, but if you become pregnant, you must go through pregnancy,’ we are in essence denying them the benefit of the equal rights amendment” (Hearings before the Subcommittee on Constitutional Amendments of the Committee of the Judiciary, 94th Congress, 11 Apr. 1975, p. 299).
Charles E. Rice of the University of Notre Dame Law School said, “The potential effects of ERA on abortion are sufficient, it seems to me, to cause all those who oppose abortion to oppose the ERA” (“ERA: Easy Rampant Abortion,” Wanderer, Feb. 1975).
Since 1973 there has been a series of court decisions in the United States affirming the right to abortion on demand. Any reasonable chance for reversing that trend would probably be eliminated under the ERA. Moreover, other issues related to abortion (such as whether parents of minors must be notified and whether government funds will be involved) are still being decided by the courts. Those decisions will certainly be affected if the ERA is adopted.
In hearings before the Senate Judiciary Committee, Paul A. Freund of Harvard Law School testified: “Indeed if the law must be as undiscriminating concerning sex as it is toward race, it would follow that laws outlawing wedlock between members of the same sex would be as invalid as laws forbidding miscegenation [interracial marriages]” (Senate Report 92-689, p. 47).
Passage of the ERA would carry with it the risk of extending constitutional protection to immoral same-sex—lesbian and homosexual—marriages. The argument of a homosexual male, for example, would be: “If a woman can legally marry a man, then equal treatment demands that I be allowed to do the same.” Under the ERA, states could be forced to legally recognize and protect such marriages. A result would be that any children brought to such a marriage by either partner or adopted by the couple could legally be raised in a homosexual home. While it cannot be stated with certainty whether this or any other consequence will result from the vague language of the amendment, the possibility cannot be avoided.
Many proponents of the ERA conclude that if men are drafted, women should be also. They point to Israel as an example of a democracy where both men and women are required to serve in the military. Israeli women, however, are subject to an equal rights provision that does not require absolute equality in the military. They serve shorter terms than men. They are exempt from service if they marry or have a child. They live in separate barracks and are not subject to combat.
Women have given and continue to give invaluable patriotic service in the military. But to require women to serve, especially on the same basis as men, would remove a traditional freedom. Further, many ramifications of the ERA in military life deeply concern us. For example, it is anticipated that under the ERA men and women in the military could be compelled to live in mixed housing, which would violate the religious and moral ideals of many.
Senator Hiram Fong of Hawaii raised this question concerning the ERA and the military. He said: “If women are found physically qualified (under the same tests administered to determine men’s qualifications) they will, in all likelihood, be required to serve in combat. Separate units for women will, I believe, be abolished just as separate ethnic and racial units in the Armed Forces have been abolished—both men and women will serve in the same units. What privacy women will be able to be afforded, if any, is uncertain” (Senate Report 92-689, pp. 24-25).
Recent newspaper reports have focused on other hazards to women in the military. In a UPI release, Senator William Proxmire (D-Wis.) noted an effect of more women serving alongside men in the army. There is “growing evidence that sexual abuse of women has become pervasive on certain bases.” He continued: “The pattern of sexual abuse ranges from persistent verbal harassment and sexual comment to explicit threats and coercion to trade sex for promotion or other privileges” (Deseret News, 3 Jan. 1980, p. A-13).
Under the ERA, with more women required to serve on the same basis as men, it is feared that such abuses would only increase. General Elizabeth Hoisington, former director of the Women’s Army Corps, has pointed out the “peripheral dangers of serving in combat units—being raped by strangers or temporarily crazed comrades; being taken prisoner of war and being abused, beaten, and starved; being mentally and physically incapable of performing one’s assigned duties in combat and responsible for others’ being killed or wounded. …
“There is more to fear than being killed and not returning to your loved ones at home,” she concluded (Washington Star, 9 Jan. 1980, pp. A-1 ff).
Under existing laws, Congress has the power to draft women, but even in dire national emergency has never chosen to do so. Should it at some time exercise that power, Congress could give women the option of not going into combat and could preserve their privacy rights. Congress could even rescind the drafting of women. Passage of the ERA would not allow Congress any of these options.
When God created male and female, he gave each important differences in physical attributes and family responsibilities. Though imperfect, our country’s laws have generally supported those differences.
Many women, wives and mothers included, must of necessity work outside the home. The inequalities they encounter can be dealt with under existing law. For those, however, who choose to remain in the home and maintain a traditional family, passage of the ERA may make their choice more difficult.
Family support is one area where pressures might be put on the family. In the Yale Law Journal, Professor Thomas I. Emerson, an ERA proponent, wrote: “In all states, husbands are primarily liable for the support of their wives and children. … The ERA would ban a state from imposing greater liability for support on a husband than on a wife merely because of his sex” (80:944-45). We see some evidence of this in states where similarly worded amendments have already been added to state constitutions: husbands are no longer necessarily responsible for the support of their minor children; husbands may have no legal obligation to pay their wife’s medical expenses, etc. (see question 15, p. 13).
An additional danger is that, instead of merely changing laws to give a wife the same responsibility as her husband for family financial support, passage of the ERA could eliminate all legal responsibility for both spouses. A “Brief in Support of Ratification of the Equal Rights Amendment,” prepared for the League of Women Voters by the New York law firm of Bellamy, Blank, Goodman, Kelly, Ross, and Stanley, states: “Legislatures will have to redefine … the obligation of support between husband and wife. … Criminal laws which make a husband liable for the support of his wife should probably be repealed rather than extended to cover women” (p. 15).
If this law firm’s opinion proves true, women contemplating marriage would have no legal guaranty of financial support. Women already married who prefer to remain home and bear children would not only be giving up their own earning power but would also be unable to legally count on child support from their husbands. Great pressures could be brought to bear on a woman not to marry or have children and to join or remain in the labor force.
In addition, financial columnist Sylvia Porter predicts that in order to extend Social Security benefits to a woman, the ERA would, in cases where a wife has no outside employment, require the husband to pay Social Security taxes on the value of the wife’s contribution in the home (syndicated column, 8 Apr. 1975). Thus, the single-income family’s tax burden would be increased, and in some cases the wife could be forced to work outside the home.
Another threat to the family would be the possibility of compulsory military service for women (or the first spouse to be drafted), and even worse, compulsory military service in combat zones (see question 10, p. 9).
The Church does not seek to alter physical and emotional differences set by God. In the beginning God did not create a neuter “them”—but “male and female created he them” (Gen. 1:27). Regarding the central role they held in common, God said to both, “Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth” (Gen. 1:28). Life was meant to bring—and can bring—great joy and happiness. But that happiness depends, in part, on men and women, as parents, discovering and fulfilling the roles to which each is especially suited.
At the time of the Creation, the responsibility of bearing and nurturing children was assigned the mother. The primary role of providing was assigned the father. There is nothing in all of scripture that alters this fundamental understanding; and indeed, modern scripture and modern prophets have reinforced this basic relationship between mothers and fathers. However, the opportunity to “subdue” the earth and to “have dominion” over it applies equally to the full creative abilities and energies of all God’s children, male and female, married or single. But within the stewardship of parenthood, God took care to describe the primary responsibilities of mothers and of fathers.
Therefore, it is with this understanding of God’s instructions that we have noted the negative impact that ERA could have on present laws protecting mothers and children from fathers who do not accept legal responsibilities for their children, and on present laws protecting family structure and relationships between husbands and wives. The proposed ERA challenges this entire scriptural understanding, brings ambiguity to relationships where ambiguity need not exist, and portends tragic consequences for individuals and society.
In the opinion of BYU Law School Dean Rex E. Lee, “By its nature, it will either do too little or too much. …
“The highly vague language of the ERA has the potential to do far more than simply add one additional suspect classification (sex) to existing equal protection doctrine. How much more? I really don’t know. And that is the greatest problem.
“It is beyond argument, I would suppose, that some of today’s applications and interpretations of the due process and equal protection clauses were beyond the contemplation of the draftsmen of the Fourteenth Amendment. For example, I am sure that the suggestion that they were dealing in any way with abortion would have come as a great surprise to the draftsmen of the Fourteenth Amendment. And yet, in a larger sense, no one can legitimately claim total surprise, because one of the risks—in my view the major risk—from adoption of a constitutional amendment having the vagueness of the Fourteenth Amendment or the ERA is that it necessarily vests the courts with a potential for policymaking unforeseen at the time the amendment was adopted. In the case of the Fourteenth Amendment the risk was worth running, because we had no general constitutional guaranty of equality. The same is not true of the Equal Rights Amendment.
“We ought not to close our eyes, therefore, to the fact that we don’t know what kind of content the courts will pour into this highly vague language over the centuries that it will be a part of our Constitution. Most proponents of the ERA staunchly deny most of the examples that constitute the parade of horrors suggested by the opponents: homosexual marriages, single-sex public bathrooms, diminution of privacy in public facilities, etc. I am sure that many of the proponents are very sincere in these assurances. But I am equally sure that there are other people for whom these are the desired results. And with a constitutional amendment we can’t be sure until we have had the years, the decades, and even the centuries of litigation that will surely ensue to determine what it really means.”
Recognized constitutional authorities state that the Equal Rights Amendment would represent a serious eroding of the powers of states and would result in a massive transfer of legislative power dealing with domestic relations from the states to the federal level. This transfer would greatly disrupt the division of powers central to our constitutional system. Domestic relations laws are now passed, interpreted, and enforced primarily at local and state levels. This permits local flexibility for differing cultures, ideals, and customs. Section 2 of the proposed Equal Rights Amendment gives Congress the power to make new laws to enforce the ERA. Family law standards could be primarily set by Congress, implemented by the federal government, and interpreted by the judiciary.
A recent example in a related area is illustrative. To enforce a provision of the Fair Housing Act (intended to prevent landlords from discriminating among renters on the basis of sex), the federal government recently tried to force Brigham Young University to abandon its requirement of separation of the sexes in off-campus student housing. When asked if this could lead to forced male-female integration of individual apartments, the government had to concede that it could.
We conclude that the ERA would also further shift law-making power from elected legislators to nonelected judges. It would accelerate the trend to govern by judicial decisions rather than by passage of law. Placing more power with the courts further erodes the separation-of-powers protective shield surrounding our freedoms. If the ERA is ratified, the federal judiciary will be required to interpret the broad language of the amendment to give new, specific, legal definitions to its sweeping provisions. In order for the law to be implemented, someone has to say what these broad terms mean in such specific contexts as sexual preference, mother/daughter and father/son activities, women in the military, and dormitory living. Under the Constitution, that responsibility is vested in the courts, and once they speak, their decisions are difficult to change. Thus, a new amendment, with key terms to be defined, effectively grants law-making power to the unelected judiciary. One political observer, Michael Kilian, has said that such a condition exists with the proposed Equal Rights Amendment, which he calls “a menace that must be defeated for reasons that have nothing to do with either side of the issue of women’s rights. The reasons have to do with another menace, perhaps the greatest menace to individual freedom and representative government in the history of the nation: Government by judicial fiat” (syndicated column, Chicago Tribune, 10 Aug. 1978, sect. 3, p. 2; italics added).
Therefore, maintaining the essential separation and division of powers provided for by the divinely inspired Constitution is a moral issue for Latter-day Saints. The Lord himself has said “that every man may act in … moral agency, that every man may be accountable for his own sins. … For this purpose have I established the Constitution of this land, by the hands of wise men whom I raised up unto this very purpose” (D&C 101:78, 80; see also D&C 98:5-6). Without the full freedoms and safeguards it guarantees, our people, our ideals, and our practices could be gravely threatened.
Seventeen states have passed a state equal rights amendment. The language of eleven of those state amendments is substantially different from that of the proposed federal ERA, containing the more flexible “equal protection of the law” concept of the Fourteenth Amendment. Those eleven state amendments thus allow the courts to make “reasonable exceptions” and differentiation between the sexes when interpreting the law. But the remaining six state amendments have the same or nearly the same “no exceptions allowed” language as the federal ERA. Experience in these states thus gives reason for concern regarding the proposed federal amendment. In judicial interpretations of some of these state equal rights amendments, an absolutist, inflexible approach appears to be evolving.
Here are examples of rulings made under those state amendments with language similar to the ERA:
Coleman v. Maryland, 37 Md. App. 322, 377 A.2d (1977): The court in this case held that a husband could no longer be required to support his wife. Newspaper reports of the case termed the ruling “unfortunate,” but admitted that the court had no choice under the state equal rights amendment.
Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974): This case exempted a father from providing primary support for his minor children.
Albert Einstein Medical Center v. Nathans, 5 D&C 3d 619 (1978): The trial court in this case nullified a husband’s legal responsibility to pay for his wife’s hospital and medical bills—or any “necessaries,” as previously required by law.
Commonwealth v. PA Interscholastic Athletic Association, 18 Pa. Cmwlth 45, 334 A.2d 839 (1975): The court in this case ruled that, under the absolute mandate of the state equal rights amendment, all school sports must be integrated—including wrestling and football—regardless of sex. That means that students may no longer be excluded solely on the basis of their sex; they may be excluded, however, because of lack of individual ability.
Darrin v. Gould, 85 Wash 2d 859, 540 P.2d 882 (1975): In a case similar to the Athletic Association case cited above, the judge ruled that all school sports must be open to both sexes. The Pennsylvania case was relied on as precedent.
Whether these decisions are fair indicators of things to come is yet to be determined. But far more sobering than the ruling in any individual case is the realization that many of the decisions under the Fourteenth Amendment that have amounted to judicial policymaking did not begin to appear for decades, and some not for over a century. The main danger with solving current problems with a constitutional amendment whose language is as vague as that of the ERA is that future judicial and administrative policymaking is not only possible but authorized.
Because all proposed moderating amendments to the ERA were rejected by Congress at the time it was considered.
Among those defeated amendments were the following:
“This article shall not impair, however, the validity of any laws of the United States or any State which exempt women from compulsory military service” (Congressional Record, pp. S9317-S9337).
“… shall not impair … any laws … which exempt women from service in combat units of the Armed Forces” (Cong. Rec., pp. S9337-S9351).
“… shall not impair … any laws … which extend protections or exemptions to women” (Cong. Rec., pp. S9351-S9370).
“… shall not impair … any laws … which extend protections or exemptions to wives, mothers, or widows” (Cong. Rec., pp. S9517-S9524).
“… shall not impair … any laws … which impose upon fathers responsibility for the support of their children” (Cong. Rec., pp. S9524-S9528).
“… shall not impair … any laws … which secure privacy to men and women, boys and girls” (Cong. Rec., pp. S9529-S9531).
“… shall not impair … any laws … which make punishable as crimes sexual offenses” (Cong. Rec., pp. S9531-S9537).
“Neither the United States nor any State shall make any legal distinction between the rights and responsibilities of male and female persons unless such distinction is based on physiological or functioning differences between them” (Cong. Rec., pp. S9537-S9538).
“The provisions of this article shall not impair the validity, however, of any laws of the United States or any State which exempt women from compulsory military service, or from service in combat units of the Armed Forces; or extend protections or exemptions to wives, mothers, or widows; or impose upon fathers responsibility for the support of children; or secure privacy to men or women, or boys or girls; or make punishable as crimes rape, seduction, or other sexual offenses” (Cong. Rec., pp. S9538-S9540).
With the defeat of all these moderating amendments, on 22 March 1972 the House and Senate jointly passed the ERA as it now reads. Should the ERA be ratified, the courts will look to this legislative history as they seek to determine the intent of the lawmakers. The lawmakers clearly voted for no distinctions or exceptions on the basis of sex.
Court interpretations of this intent could obviously affect many areas, one of which is public accommodations. A 1978 memorandum from the Office of the Virginia Attorney General stated that under the ERA, “if the open-ended language of the Amendment is to be accorded its reasonable meaning, not only must separate colleges and prisons be abolished, but facilities within those institutions, such as dormitories, would be required to be assigned on a sexblind basis” (Memo to the Virginia Legislature on the Virginia Task Force Study on the ERA).
17. Does the Church’s opposition to the ERA violate the First Amendment doctrine of separation of church and state?
The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It thus prohibits the interference of the state in religious matters. Because the Constitution neither states nor implies that religions shall not involve themselves in matters pertaining to government, churches have full constitutional right to speak out on moral issues. Indeed, it is the responsibility of churches to provide and safeguard a moral framework in which their members can exercise their beliefs. Such concerns were a major reason for the settlement of this country; religious freedom was the first guaranty the framers of the Constitution provided for. Fundamental to the philosophy of the Constitution is the understanding that a democratic society cannot function without moral restraint and individual discipline, values traditionally promoted by religion in general. George Washington, who presided at the Constitutional Convention, underscored this idea when he said, “Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle” (“Farewell Address” in Documents of American History, ed. Henry Steele Commager, New York: Meredith Corp., 1968, p. 173).
Since the First Presidency believes that basic freedoms pertaining to the family and society’s moral climate will be eroded if the ERA is passed, the Church has a moral responsibility, validated by history and doctrine, to oppose the amendment.
In addition, the First Amendment right of free speech entitles individuals and institutions to responsibly express their views.
In the words of one legal scholar, “The Supreme Court of the United States has frequently reaffirmed the right of citizens or organizations to petition the government for and advocate changes in law or government practices considered to be in their best interests.
“In view of the dual guaranties of freedom of speech and religion, these rights to petition and advocate apply with even greater force to a church. Far from being inappropriate, a church has a clear right under the law and may have an ethical obligation to seek changes in laws and government practices to enable it to carry out its worthy moral and social objectives.
“While the government is forbidden from passing laws to finance or direct a church, a church and its members are not forbidden from attempting to influence the content of the laws under which they must carry out their religious functions and engage in the activities that are affected by religious ideals. In fact, their right to seek or oppose such changes in the law is guaranteed by the freedoms of speech and religion in the First Amendment to the U.S. Constitution” (Dallin H. Oaks, 28 Jan. 1980).
Yes. The First Presidency has spoken out against the amendment and urged members to exercise their civic rights and duties and to “join actively with other citizens who share our concerns and who are engaged in working to reject this measure on the basis of its threat to the moral climate of the future.”
In addition, many local Church leaders on stake and ward levels have encouraged their membership to keep informed and perform their civic duties, knowledgeably and prayerfully, in dealing with these and other important moral issues and, as their circumstances permit, participate as citizens in efforts against ratification.
Because of this counsel, many Church members have joined with other similarly minded citizens in their efforts to defeat the ERA. This instruction has also resulted in the creation of state coalitions.
No. Individual representatives of the Church have been invited to address audiences on the amendment, rooms in Church buildings may have been used in isolated cases, and four pamphlets have been printed.
Individual members have donated to groups opposing the amendment, but such donations have not been given as charitable, tax-deductible contributions to the Church.
It should be noted that substantial federal and state tax monies, which all citizens are required by law to pay, have been spent to promote the amendment’s ratification. Likewise, many federal and state officials have used the influence of their offices and government facilities in this effort.
Membership in the Church has not been threatened nor withdrawn simply because of expressed agreement with the proposed amendment. In this, as in all other matters, members are free to accept or reject the counsel of the First Presidency. Freedom to discuss the merits of any public issue is a legitimate exercise of citizenship, recognized and encouraged by the Church. This can be done without indulging in ridicule or attacking those with opposing views.
The mission of the Church is to save, but when those of its members publicly deride it, demean its leaders, and openly encourage others to interfere with its mission, then it may exercise its right to dissociate itself from them.
This policy was set forth as long ago as 17 August 1835:
“We believe that all religious societies have a right to deal with their members for disorderly conduct, according to the rules and regulations of such societies; provided that such dealings be for fellowship and good standing; but we do not believe that any religious society has authority to try men on the right of property or life, to take from them this world’s goods, or to put them in jeopardy of either life or limb, or to inflict any physical punishment upon them. They can only excommunicate them from their society, and withdraw from them their fellowship” (D&C 134:10).
See http://law-library.rutgers.edu/SSM.html for more resources on the legal issues.
At the town hall meeting in Davenport Iowa on August 24, 2004 ( see http://www.whitehouse.gov/news/releases/2004/08/20040824-4.html for the full transciption ):
Question: " We
have a battle here on this land, as well. And I would like to know, sir, from
your heart -- I don't want to know what your advisors say, or even what your
top advisor thinks -- but I need to know what do you think about homosexual
Same-Sex Marriages are not a new phenomenon. Many societies
that have been studied by anthropologists have accepted same-sex marriages on
a par with two-sex marriages and viewed them as acceptable. In fact, they were
found in about 18 percent of all of the world's various cultures. They were
especially especially common among North American Indian tribes, and perhaps
two-thirds of these tribes accepted same-sex marriages on a par with two-sex
marriages. For instance, most of the Plains Indians permitted marriages
between men or between women, as did the, the Achumawi, the MicMac, Navajo,
and many others.
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