In The United States District Court For The District of Idaho

Case 1:13-cv-00482-CWD Document 81 Filed 03/20/14 Page 1 of 51
THOMAS C. PERRY, ISB #7203 CALLY A. YOUNGER, ISB #8987 Counsel to the Governor Office of the Governor P.O. Box 83720 Boise, ID 83720-0034 Telephone: (208) 334-2100 Facsimile: (208) 334-3454 Attorneys for Defendant Governor C.L. Butch Otter IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO SUSAN LATTA and TRACI EHLERS, LORI WATSEN and SHARENE WATSEN, SHELIA ROBERTSON and ANDREA ALTMAYER, AMBER BEIERLE and RACHAEL ROBERTSON, ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) C.L. (BUTCH) OTTER, as Governor of the State ) of Idaho, in his official capacity, and ) CHRISTOPHER RICH, as Recorder of Ada ) County, Idaho, in his official capacity, ) ) Defendants, ) ) and ) ) STATE OF IDAHO, ) ) Defendant-Intervenor. )
Case No. 1:13-cv-00482-CWD DEFENDANT GOVERNOR OTTERS RESPONSE IN OPPOSTION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT (Dkt. Nos. 45, 59, 61)
TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................................................................................... iv-x INTRODUCTION .......................................................................................................................... 1 ARGUMENT 1. Plaintiffs Opening Brief erroneously presumes that this Court must accept as true all their legislative facts rather than defer to the contrary and robustly supported legislative facts sustaining the decisions made democratically by Idaho and its citizens .. 1 2. Plaintiffs Opening Brief wrongly ignores and tries to obscure the stark reality that this is a contest between two mutually exclusive and profoundly different social institutions: the man-woman marriage institution versus a genderless marriage regime ....................... 3 3. Plaintiffs Opening Brief erroneously insists on a shriveled, constricted concept of marriage while ignoring the valid broader understanding of marriage sustaining Idahos Marriage Laws against all constitutional attacks .............................................................. 11 4. Plaintiffs Opening Brief ignores the compelling interests advanced by the Governor in support of Idahos Marriage Laws .................................................................................................................................. 14 A. Robustly supported legislative facts show that children generally are benefited by knowing and being reared by their own mother and father ............. 16 B. Robustly supported legislative facts show that children generally are benefited by gender-complementarity in their upbringing ................................... 17 C. Idaho rightly engages in two legitimate but different child-welfare endeavors .............................................................................................................. 18 D. When the Plaintiffs Opening Brief says that the primary purpose and practical effect of Idahos marriage ban is to disadvantage and stigmatize samesex couples and their children, it is making a patently false and thoroughly baseless statement ................................................................................................. 19 E. The Plaintiffs Opening Brief erroneously reads Windsor as creating a freestanding, federal right to equal dignity. ........................................................... 23 5. In attempting to deploy the argument based on the marriages of man-woman couples without procreative capacity or intent, the Plaintiffs Opening Brief yet again ignores the social institutional realities of marriage ............................................................................ 24
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6. In attempting to make its substantive due process/fundamental right argument, the Plaintiffs Opening Brief yet again ignores the social institutional realities of marriage . 25 7. Plaintiffs Opening Brief errs in arguing that Idahos Marriage Laws constitute sex discrimination ................................................................................................................... 26 8. Plaintiffs Opening Brief misreads and misapplies Baker v. Nelson, SmithKline, and Loving ............................................................................................................................... 28 A. The POB misreads and misapplies the law governing Supreme Court summary dismissals .............................................................................................................. 28 B. The POB misreads and misapplies SmithKline .............................................. 32 C. The POB misreads and misapplies Loving ..................................................... 34 9. In arguing for a federal constitutional right compelling Idaho to recognize the foreign marriages of same-sex couples, the Plaintiffs Opening Brief makes an unfounded argument that stands our Nations principles of federalism on their head ................................................................................................................................... 36 CONCLUSION ............................................................................................................................. 40
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TABLE OF AUTHORITIES Cases Agostini v. Felton, 521 U.S. 203 (1997) .................................................................................................................. 30 Andersen v. King Cnty., 138 P.3d 963 (Wash. 2006)....................................................................................................... 27 Baker v. Nelson, 409 U.S. 810 (1972) ............................................................................................................ 28, 29 Baker v. Vermont, 744 A.2d 864 (Vt. 1999) ........................................................................................................... 27 Bishop v. United States ex rel. Holder, ___ F. Supp. 2d ___, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014) ........................................ 11 Bostic v. Rainey, ___ F. Supp. 2d ___, 2014 WL 561978 (E.D. Va. Feb. 13, 2014) ........................................... 10 Bourke v. Beshear, ___ F. Supp. 2d ___, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) .......................................... 10 Conaway v. Deane, 932 A.2d 571 (Md. 2007) ......................................................................................................... 27 Conover v. Aetna U.S. Healthcare, Inc., 320 F.2d 1076 (10th Cir. 2003) ................................................................................................ 31 Dale v. Boy Scouts of Am., 734 A.2d 1196 (N.J. 1999),....................................................................................................... 33 Dandridge v. Williams, 397 U.S. 471 (1970) .................................................................................................................. 39 De Leon v. Perry, ___ F. Supp. 2d ___, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014) ........................................ 10 Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003) ............................................................................................... 5, 12 Hellquist v. Owens, 2002 Sask. Q.B. 506 ................................................................................................................. 33 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ......................................................................................................... 27 iv
Hicks v. Miranda, 422 U.S. 332 (1975) .................................................................................................................. 31 In re Kandu, 315 B.R. 123 (W.D. Wash. 2004) ............................................................................................. 27 In re Marriage Cases, 183 P.3d 384 (Cal. 2008) .......................................................................................................... 27 Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) ...................................................................................... 27 Kitchen v. Herbert, ___ F. Supp. 2d ___, 2013 WL 6697874 (D. Utah Dec. 20, 2013) .......................................... 10 Lawrence v. Texas, 539 U.S. 558 (2003) .................................................................................................................. 31 Lofton v. Sec'y of Dep't of Child & Fam. Servs., 358 F.3d 804 (11th Cir. 2004) .................................................................................................. 17 Loving v. Virginia, 388 U.S. 1 (1967) ................................................................................................................ 34, 35 Mandel v. Bradley, 432 U.S. 173 (1977) .................................................................................................................. 31 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) .................................................................................................................. 37 Obergefell v. Wymyslo, ___ F. Supp. 2d ___, 2013 WL 7869139 (S.D. Ohio Dec. 23, 2013) ....................................... 10 Oregon v. Ice, 555 U.S. 160 (2009) .................................................................................................................. 37 Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) ................................................................................................................. 31 S.E.C. v. Gemstar-TV Guide Intern., Inc., 401 F.3d 1031 (9th Cir. 2005) .................................................................................................. 36 Sevcik v. Sandoval, 911 F. Supp. 996 (D. Nev. 2012) ............................................................................................. 27 Singer v. Hara, 522 P.2d 1187 (Wash. App. 1974) ........................................................................................... 27
Smelt v. Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) ...................................................................................... 27 SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014) .................................................................................................... 32 Tanco v. Haslam, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) ........................................................................ 10 Trinity W. Univ. v. Coll. of Teachers, [2001] 1 S.C.R. 772 (Can.) ....................................................................................................... 33 Tully v. Griffin, 429 U.S. 68 (1976) .................................................................................................................... 30 Turner v. Safley, 482 U.S. 78 (1987) .................................................................................................................... 35 United States v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012) .................................................................................................... 39 United States v. Virginia, 518 U.S. 515 (1996) ............................................................................................................ 17, 28 United States v. Windsor, 133 S. Ct. 2675 (2013) ....................................................................................................... passim Vance v. Bradley, 440 U.S. 93 (1979) ................................................................................................................ 2, 16 Washington v. Glucksberg, 521 U.S. 702 (1997) .................................................................................................................. 39 Williams v. North Carolina, 317 U.S. 287 (1942) .................................................................................................................... 5 Wilson v. Ake, 354 F. Supp. 2d 1298 ................................................................................................................ 27 Zablocki v. Redhail, 434 U.S. 374 (1978) .................................................................................................................. 35 Statutes and Regulations 28 U.S.C. 2403 ........................................................................................................................... 36 Defense of Marriage Act 3, 110 Stat. 2419 (1996) .............................................................. 20, 21 Defense of Marriage Act 2, 28 U.S.C. 1738C ........................................................................ 36 vi
Idaho Const. art. I, 4................................................................................................................... 37 Rules Fed. R. Civ. P. 5.1 ......................................................................................................................... 36 Other Authorities Andrew Sullivan, Recognition of Same-Sex Marriage, 16 Quinnipiac L. Rev. 13 (1996) ................................................................................................ 8 Angela Bolt, Do Wedding Dresses Come in Lavender? The Prospects and Implications of Same-Sex Marriage, 24 Soc. Theory & Prac. 111 (1998)...................................................... 8 Brian Bix, Reflections on the Nature of Marriage, in Revitalizing the Institution of Marriage for the Twenty-First Century: An Agenda for Strengthening Marriage 112 (Alan Hawkins et al. eds., 2002) ................................................................................................ 9 Brief of Amici Curiae Professors Alan J. Hawkins and Jason S. Carroll in Support of Defendants-Appellants and Reversal, Kitchen v. Herbert, Case Nos. 13-4178, 14-5003, and 14-5006 (10th Cir. Feb. 10, 2014) .............................................................................................. 4 Brief of Amici Curiae Professors of Social Science in Support of Defendants-Appellees and Affirmance, Sevcik v. Sandoval, Case No. 12-17668 (9th Cir. Jan. 28, 2014) ........................ 17 Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4 (1996) ......................................................................................................... 7 Claude Lvi-Strauss, The View From Afar (1985) ......................................................................... 6 Daniel Avila, Same-Sex Adoption in Massachusetts, the Catholic Church, and the Good of the Children: The Story Behind the Controversy and the Case of Conscientious Refusals, 27 Children's Legal Rights J. 1 (2007) ..................................................................... 33 Daniel Cere, War of the Ring, in Divorcing Marriage: Unveiling the Dangers in Canadas New Social Experiment 9 (Daniel Cere & Douglas Farrow eds., 2004) .................... 8 David Blankenhorn, Fatherless America: Confronting Our Most Urgent Social Problem (1995).............................................................................................................. 33 David Blankenhorn, The Future of Marriage (2007) ............................................................... 8, 35 David Popenoe, Life Without Father: Compelling New Evidence That Fatherhood and Marriage Are Indispensable for the Good of Children & Society (1996)......................... 33 Deborah A. Widiss, Changing the Marriage Equation, 89 Wash. U. L. Rev. 721 (2012) ............................................................................................... 11
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Devon W. Carbado, Straight Out of the Closet, 15 Berkeley Women's L.J. 76 (2000) ......................................................................................... 8 Douglas Farrow, Canadas Romantic Mistake, in Divorcing Marriage: Unveiling the Dangers in Canadas New Social Experiment 1 (Daniel Cere & Douglas Farrow eds., 2004) .................................................................................................................................. 8 E.J. Graff, Retying the Knot, The Nation, June 24, 1996, at 12 ...................................................... 8 Eerik Lagerspetz, On the Existence of Institutions, in On the Nature of Social and Institutional Reality 70 (Eerik Lagerspetz et al. eds., 2001) ................................................................ 5, 6, 34 Eerik Lagerspetz, The Opposite Mirrors: An Essay on the Conventionalist Theory of Institutions (1995) ................................................................................................................................... 5, 34 Elisabeth Bumiller, Bush Says His Party Is Wrong to Oppose Gay Civil Unions, New York Times, Oct. 26, 2004, http://www.nytimes.com/2004/10/26/politics/campaign/ 26gay.html?_r=0....................................................................................................................... 30 Helen Reece, Divorcing Responsibly (2003) .................................................................................. 5 Institute for American Values, Marriage and the Law: A Statement of Principles (2006) ........ 7, 8 Institute for American Values, The Future of Family Law: Law and the Marriage Crisis in North America (2005) ................................................................................................ 13 Institute for American Values, Why Marriage Matters: Twenty-Six Conclusions from the Social Sciences (2002)......................................................................................................................... 33 John Locke, Second Treatise of Government (Richard H. Cox ed., 1982) (1690) ......................... 6 John R. Searle, Making the Social World: The Structure of Human Civilization (2010) ....... 5, 6, 9 John R. Searle, The Construction of Social Reality (1995) ............................................ 5, 6, 24, 34 Jonathan Rauch, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America (1st ed. 2004) ............................................................................................................. 30 Joseph Raz, The Morality of Freedom (1986) ................................................................................ 7 Judith Stacey, In the Name of the Family: Rethinking Family Values in the Postmodern Age (1996) ......................................................................................................................................... 8 Jurisdictional Statement, Baker v. Nelson, No. 71-1027 (U.S. Feb. 11, 1971)............................. 29 Katherine Acey et al., Beyond Same-Sex Marriage: A new strategic vision for all out families & relationships (July 26, 2006) ............................................................................................. 6
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Katherine K. Young & Paul Nathanson, The Future of an Experiment, in Divorcing Marriage: Unveiling the Dangers in Canadas New Social Experiment 48 (Daniel Cere & Douglas Farrow eds., 2004) ...................................................................................................................... 8 Ladelle McWhorter, Bodies and Pleasures: Foucault and the Politics of Sexual Normalization (1999) ......................................................................................................................................... 8 Linda C. McClain, The Place of Families: Fostering Capacity, Equality, and Responsibility (2006) ....................................................................................................................................... 12 Lynn D. Wardle, Counting the Costs of Civil Unions: Some Potential Detrimental Effects on Family Law, 11 Widener J. Pub. L. 401 (2002) ............................................................................................. 30 M.V. Lee Badgett, Will Providing Marriage Rights to Same-Sex Couples Undermine Heterosexual Marriage? Sexuality Res. & Soc. Poly, Sept. 2004 ......................................... 30 Matthew B. O'Brien, Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberalism, and the Family, 1 Brit. J. Am. Legal Stud. 411 (2012) ......................................................................................... 7 Monte Neil Stewart, Genderless Marriage, Institutional Realities, and Judicial Elision, 1 Duke J. Const. L. & Pub. Pol'y 1 (2006) ....................................................................... 5, 6, 34 Monte Neil Stewart, Judicial Redefinition of Marriage, 21 Can. J. Fam. L. 11 (2004) ............................................................................................... 5, 18, 24, 26, 34 Monte Neil Stewart, Marriage Facts, 31 Harv. J.L. & Pub. Pol'y 313 (2008) ......................... 7, 13 Monte Neil Stewart & William C. Duncan, Marriage and the Betrayal of Perez and Loving, 2005 BYU L. Rev. 555 ............................................................................................................. 35 Monte Neil Stewart, Marriage, Fundamental Premises, and the Supreme Courts of California, Connecticut and Iowa, 2012 BYU L. Rev. 193 ....................................................................................................... 10, 14 Monte Neil Stewart, Eliding in Washington and California, 42 Gonzaga L. Rev. 501 (2007)..................................................................................................................... 5 Nan D. Hunter, Marriage, Law, and Gender: A Feminist Inquiry, 1 Law & Sexuality 9 (1991)........................................................................................................ 8 Nancy F. Cott, The Power of Government in Marriage, 11 The Good Socy 88 (2002) ............... 7 Richard R. Clayton, The Family, Marriage, and Social Change (2d ed. 1979) ............................. 5
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Richard W. Garnett, Taking Pierce Seriously: The Family, Religious Education, and Harm to Children, 76 Notre Dame L. Rev. 109 (2000) ............................................................................................ 7 Ruth Bader Ginsburg, Ratification of the Equal Rights Amendment: A Question of Time, 57 Tex. L. Rev. 919 (1979) ....................................................................................................... 27 Scott Yenor, Family Politics: The Idea of Marriage in Modern Political Thought (2011) ......... 13 Seana Sugrue, Soft Depotism and Same-Sex Marriage, in The Meaning of Marriage: Family, State, Market, and Morals 172 (Robert P. George & Jean Bethke Elshtain eds., 2006) .................................................................................................................................. 6 Sherif Girgis et al., What Is Marriage? Man and Woman: A Defense (2012) .................. 8, 12, 35 Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry, Out/Look Natl Gay & Lesbian Q., Fall 1989, at 19 ....................................................................................................... 8 Transcript of Oral Argument at 21, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144) ............................................................................................................................. 17 Transcript of Oral Argument at 38, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144) ............................................................................................................................. 31 Victor Nee, Sources of the New Institutionalism, in The New Institutionalism in Sociology 1 (Mary C. Brinton & Victor Nee eds., 2001) ............................................................................. 34 Victor Nee & Paul Ingram, Embeddedness and Beyond: Institutions, Exchange, and Social Structure, in The New Institutionalism in Sociology 19 (Mary C. Brinton & Victor Nee eds., 1998) ..................................................................................................................................... 5, 34 Witherspoon Institute, Marriage and the Public Good: Ten Principles (2008) ......................... 7, 8
INTRODUCTION The Plaintiffs Memorandum in Support of their motion for summary judgment (hereinafter referred to as Plaintiffs Opening Brief or POB) (Dkt. Nos. 59, 61) is built on a number of material errors of law and legislative facts. Once those errors are corrected, all the POBs arguments necessarily collapse. This, Governor Otters brief in opposition to that motion, corrects those errors and thereby demonstrates that this Court should enter judgment against the Plaintiffs on all their claims. ARGUMENT 1. Plaintiffs Opening Brief erroneously presumes that this Court must accept as true all their legislative facts rather than defer to the contrary and robustly supported legislative facts sustaining the decisions made democratically by Idaho and its citizens. Pervading Plaintiffs Opening Brief (POB) are two presumptions, one of law and one of legislative fact. The POBs legal presumption is that, in cases of this kind where the contest is not over adjudicative facts but rather over legislative facts, this Courts proper role is to anoint one sides legislative facts as true and disregard the other sides legislative facts. That presumption is wrong, as Defendant Governor Otters Memorandum in Support of Motion for Summary Judgment (Governors Opening Brief) (Dkt. No. 57-2) at pages 1621 demonstrated. In shortest summary, the clear and settled law is that, regardless of the level of judicial scrutiny deployed, a federal court will defer to the government decision-makers choice of legislative facts. It is not enough for a plaintiff to present conflicting legislative facts; a plaintiff challenging democratically chosen legislative facts can prevail only on a showing that the States proffered legislative facts are not fairly debatable. Moreover (to continue the summary), not only is the law clear and settled, it is also supported by three powerful policy considerations. First, the courts understand and value the 1
phenomenon of collective wisdom. Our democratic ethos privileges the reasonable understandings and conclusions reachedthe legislative facts chosenby the people through our democratic processes. Second, many of the most important legislative facts in these types of cases are really predictions of what will happen in society in the future assuming this or that present governmental action. Because of the complexity of human society, a court cannot accept as true one prediction in the face of a contrary but still rationally made prediction. Third, the courts understand the limits on their own competence. It makes no difference that the [legislative] facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety. Vance v. Bradley, 440 U.S. 93, 112 (1979) (internal quotations omitted). The POBs entire treatment of the key legislative facts is contrary to the clear and settled law. Thus, the POB seeks to persuade this Court to accept that social science has conclusively established now and forever that there are no differences between the outcomes of same-sex couple child-rearing and the outcomes of married mother-father child-rearing, POB at 3033, and that social science has conclusively established now and forever that children are not benefitted by gender-complementarity (diversity) in child-rearing. Id. The examples could go on. The error in this treatment is that Governor Otter has advanced robustly supported legislative facts contrary to the Plaintiffs. We address those legislative facts in more detail in subsequent sections, exposing the POBs error in specific contexts. We do that because, under the governing law, it is the well-supported legislative facts supportive of Idahos challenged marriage laws (Marriage Laws) on which this Court must base its constitutional analysis.
2. Plaintiffs Opening Brief wrongly ignores and tries to obscure the stark reality that this is a contest between two mutually exclusive and profoundly different social institutions: the man-woman marriage institution versus a genderless marriage regime. Perhaps the most egregious error in the POB is its refusal to acknowledgeand its evasion ofjust what this case is seeking. There is only one way any of the plaintiff-couples can be married legally in Idaho (regardless of where the wedding ceremony takes place): for this Court to mandate that the legal meaning of marriage in this State is no longer the union of a man and a woman but is and must be hereafter the union of any two persons. That is starkly obvious because as long as the man-woman meaning prevails, the plaintiff-couples cannot be a married couple here in any intelligible sense. Yet that legal redefinition willmustoperate over time to suppress Idahos vital man-woman marriage institution and create in its stead a profoundly different genderless marriage regime. Consequently, that legal redefinition will mustover time diminish the valuable benefits that the man-woman meaning in marriage now provides materially and even uniquely. Briefly stated, those benefits are that the man-woman meaning in marriage furthers Idahos vital interest in maximizing the number of children who are raised by their own two married biological parents; furthers Idahos vital interest in maximizing the number of children raised by parents who can at least give them the benefits of gender complementarity; minimizes fatherlessness (and motherlessness) in the lives of children, a condition particularly challenging to childrens well-being generally; and advances Idahos vital interest in preserving religious liberties and minimizing civic strife. See Governors Opening Brief at 3155. For obvious reasons, marriage defined as the union of two persons counters those interests, communicating that children do not need their mothers and fathers or even gendercomplementarity in their upbringing and making irrelevant and thereby devaluing the role of 3
father and the role of mother. Idaho and its people have a strong basis for perceiving and predicting the social messages that marriage redefined in genderless terms would communicate, especially to heterosexuals, 1 and the consequences of those communications: (1) Procreation is not intrinsically connected to marriage. By breaking the traditional social link between marriage and procreation, the redefinition of marriage would send the message that there is no particular reason to get married to have children. (2) Biological ties do not matter. This may lead a busy or irresponsible biological parent (usually a father, but sometimes a mother), to assume that, so long as someone is taking care of the child, there is no need for him or her to be involved. (3) Gender is fungible. For parenting, this means that no particular benefit comes from having both a mother and a father. This too may lead a busy or irresponsible parent to think it is not particularly important for him to be actively involved in parenting. (4) Adult interests are paramount. This too may lead a busy or irresponsible parent to believe its appropriate to sacrifice his childs welfare to his own needs for independence, free time, or other aspects of autonomy. These are the social institutional realities at play here, well documented in the literature long before the POB was drafted, and ignored by it. Because they are at the heart of a just resolution of this case, we demonstrate those realities in the following paragraphs.2
Serious scholarship underscores the risk that a genderless marriage regime poses to the nature and quality of parenting by heterosexuals. See Brief of Amici Curiae Professors Alan J. Hawkins and Jason S. Carroll in Support of Defendants-Appellants and Reversal, Kitchen v. Herbert, Case Nos. 13-4178, 14-5003, and 14-5006 (10th Cir. Feb. 10, 2014), Opp. App. 3778 (All references to Opp. App. __ are to the Appendix in Support of Defendant Governor Otters Response in Opposition to Plaintiffs Motion for Summary Judgment filed contemporaneously herewith.) 2 The societal interests that constitutionally justify marriages limitation to the union of a man and a woman exist in the very nature and fabric and operation of the marriage institution in our society. Thus, to do right by this case, this Court must educate itself about marriage to a deep, not a superficial, level. A major burden of the Governors filings is to facilitate that education. 4
Marriage is a vital social institution3 and therefore, like all social institutions, is constituted by a unique web of shared public meanings.4 Many of those meanings rise to the level of norms.5 The marriage institution affects individuals profoundly; marriages meanings and norms teach and influence individuals, supplying identities, purposes, practices, ideals, and a moral/ethical compass for navigating the institutions realm.6 Just as a society creates and sustains its marriage institution (by the use of language7), a society can change it. Because marriage is constituted by shared public meanings, it is necessarily changed when those meanings are altered or are no longer sufficiently shared.8 When marriages previously institutionalized public meanings and norms are no longer sufficiently shared by a society, through whatever means and for whatever reason, the institution
E.g., Williams v. North Carolina, 317 U.S. 287, 303 (1942) ([T]he marriage relation [is] an institution more basic in our civilization than any other.); Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 948 (Mass. 2003) (Marriage is a vital social institution.). 4 See, e.g., John R. Searle, The Construction of Social Reality 32 (1995) (Construction), App. 388 (All references to App. __ are to the Appendix filed in support of Defendant Otters Motion for Summary Judgment (Dkt. Nos. 57-3 to 57-12)); see also Monte Neil Stewart, Genderless Marriage, Institutional Realities, and Judicial Elision, 1 Duke J. Const. L. & Pub. Poly 1, 828 (2006) (Institutional Realities). 5 See, e.g., Victor Nee & Paul Ingram, Embeddedness and Beyond: Institutions, Exchange, and Social Structure, in The New Institutionalism in Sociology 19 (Mary C. Brinton & Victor Nee eds., 1998) (An institution is a web of interrelated normsformal and informalgoverning social relationships.). 6 See, e.g., Helen Reece, Divorcing Responsibly 185 (2003); Monte Neil Stewart, Judicial Redefinition of Marriage, 21 Can. J. Fam. L. 11 (2004) (Judicial Redefinition); see also Richard R. Clayton, The Family, Marriage, and Social Change 19, 22 (2d ed. 1979); Monte Neil Stewart, Eliding in Washington and California , 42 Gonzaga L. Rev. 501, 503 (2007). 7 See Searle, Construction, supra note 4, at 32, App. 388; John R. Searle, Making the Social World: The Structure of Human Civilization 90 (2010) (Social World), App. 369. 8 See, e.g., Eerik Lagerspetz, The Opposite Mirrors: An Essay on the Conventionalist Theory of Institutions 28 (1995) (Mirrors); Eerik Lagerspetz, On the Existence of Institutions, in On the Nature of Social and Institutional Reality 70, 82 (Eerik Lagerspetz et al. eds., 2001) (Existence). 5
disappears.9 This is called de-institutionalization. A new institution with different public meanings and norms may take the previous institutions name (marriage), but it will be a different institution. Across time and cultures, a core meaning constitutive of the marriage institution has nearly always been the union of a man and a woman.10 Marriages man-woman meaning provides materially and even uniquely multiple valuable social benefits, as demonstrated in the Governors Opening Brief at 315511 and summarized above. A society can have only one social institution denominated marriage. Society cannot simultaneously have as shared, core, constitutive meanings of the marriage institution both the union of a man and a woman and the union of any two personsany more than it can have monogamy as a core meaning if it also allows polygamy. So every society must choose either to retain man-woman marriage or, by force of law, replace it with a radically different genderless marriage regime.12 (The Plaintiffs core message is that the Constitution requires this Court to mandate the latter.) Although the law did not create the man-woman marriage institution,13 it has the power to de-institutionalize it by suppressing the shared public meanings that constitute it.14 The reach
See, e.g., Lagerspetz, Existence, supra note 8, at 70, 82; Searle, Construction, supra note 4, at 117, App. 428. 10 See, e.g., Claude Lvi-Strauss, The View From Afar 3942 (1985), App. 899904. 11 See also Stewart, Institutional Realities, supra note 4, at 1624. 12 A society actually has a third option: no normative marriage institution at all. Many of the most influential advocates of genderless marriage correctly and gladly see that as leading quite naturally to no normative marriage institution at all. For a clear example of high-level advocacy for such, see Katherine Acey et al., Beyond Same-Sex Marriage: A new strategic vision for all out families & relationships (July 26, 2006), App. 86692. 13 Man-woman marriage is unquestionably a pre-political institution. See, e.g., John Locke, Second Treatise of Government 47 (Richard H. Cox ed., 1982) (1690); Seana Sugrue, Soft Despotism and Same-Sex Marriage, in The Meaning of Marriage: Family, State, Market, and Morals 17296 (Robert P. George & Jean Bethke Elshtain eds., 2006); Searle, Social World, 6
of that power to suppress is large and sufficient, especially in light of the fact that, after redefinition, the old meaning would be deemed unconstitutional and the mandate imposing the new meaning would be seen as vindicating some important right. In those circumstances, suppression would be a constitutional imperative. Genderless marriage is a profoundly different institution than man-woman marriage.15 Although there is overlap in formative instruction and influence between the two possible marriage institutions, the significance is in the divergence, which is seen in the nature of the two institutions respective norms, ideals, and practices. The Governors Opening Brief at pages 3743 demonstrated these realities and we have summarized them again above. We repeat here that genderless marriage, with its Parent A and Parent B, removes the role of father and the role of mother from the law and thereby devalues them, just the opposite of what man-woman marriage communicates and accomplishes. The radical difference between the two institutions could not be otherwise: fundamentally different meanings (the union of a man and a woman versus the union of two persons without regard to gender), when magnified by institutional power and influence, produce divergent social identities, aspirations, projects, and ways of behaving, and thus
supra note 7, at 86; see also Richard W. Garnett, Taking Pierce Seriously: The Family, Religious Education, and Harm to Children, 76 Notre Dame L. Rev. 109, 114 n.29 (2000) (the laws provisions regulating marriage no more created the marriage institution than the Rule Against Perpetuities created dirt). 14 See, e.g., Witherspoon Institute, Marriage and the Public Good: Ten Principles 7 (2008) (Ten Principles), App. 496; Institute for American Values, Marriage and the Law: A Statement of Principles 7 (2006) (Marriage and the Law), App. 440; Nancy F. Cott, The Power of Government in Marriage, 11 The Good Socy 88 (2002); Joseph Raz, The Morality of Freedom 162 (1986); Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 69 71 (1996); Matthew B. OBrien, Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberalism, and the Family, 1 Brit. J. Am. Legal Stud. 411, 41315 (2012). 15 See, e.g., OBrien, supra note 14, at 41315; Monte Neil Stewart, Marriage Facts, 31 Harv. J.L. & Pub. Poly 313, 32324. 7
different social benefits.16 Well-informed observers of marriageregardless of their sexual, political, or theoretical orientationsuniformly acknowledge the magnitude of the differences between the two possible institutions of marriage.17 The reality is that changing the meaning of marriage to that of any two persons will transform the institution profoundly. That change may not occur immediately but it certainly will occur over time as the new meaning is mandated in texts, in schools, and in many other parts of the public square and voluntarily published by the media and other institutions, with society, especially its children, thereby losing the ability to discern the meanings of the old institution. The POB at page 41 reveals its confusion over (or its intentional obscuring of) these social institutional realities. It says: The unmarried Plaintiffs yearn to participate in this deeply
16
See, e.g., Witherspoon Institute, Ten Principles, supra note 14, at 7, App. 496; Institute for American Values, Marriage and the Law, supra note 14, at 7, App. 440. 17 We begin a long list (that could readily be made even longer) with the then executive director of Lambda Legal Defense and Education Fund, Thomas Stoddard, who argued that enlarging the concept of marriage would necessarily transform it into something new. Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry, Out/Look Natl Gay & Lesbian Q., Fall 1989, at 19. In addition, e.g., David Blankenhorn, The Future of Marriage 167 (2007) (Future) (I dont think there can be much doubt that this post-institutional view of marriage constitutes a radical redefinition. Prominent family scholars on both sides of the dividethose who favor gay marriage and those who do notacknowledge this reality.); Daniel Cere, War of the Ring, in Divorcing Marriage: Unveiling the Dangers in Canadas New Social Experiment 9, 1113 (Daniel Cere & Douglas Farrow eds., 2004) (Divorcing Marriage); Douglas Farrow, Canadas Romantic Mistake, in Divorcing Marriage, supra, at 15; Ladelle McWhorter, Bodies and Pleasures: Foucault and the Politics of Sexual Normalization 125 (1999); Raz, supra note 14, at 393; Judith Stacey, In the Name of the Family: Rethinking Family Values in the Postmodern Age 12628 (1996); Sherif Girgis et al., What Is Marriage? Man and Woman: A Defense 5455 (2012); Katherine K. Young & Paul Nathanson, The Future of an Experiment, in Divorcing Marriage, supra, at 4856; Angela Bolt, Do Wedding Dresses Come in Lavender? The Prospects and Implications of Same-Sex Marriage, 24 Soc. Theory & Prac. 111, 114 (1998); Devon W. Carbado, Straight Out of the Closet, 15 Berkeley Womens L.J. 76, 9596 (2000); Gallagher, supra note 2, at 53 (Many thoughtful supporters of same-sex marriage recognize that some profound shift in our whole understanding of the world is wrapped up in this legal reengineering of the meaning of marriage.); E.J. Graff, Retying the Knot, The Nation, June 24, 1996, at 12; Nan D. Hunter, Marriage, Law, and Gender: A Feminist Inquiry, 1 Law & Sexuality 9, 1219 (1991); Andrew Sullivan, Recognition of Same-Sex Marriage, 16 Quinnipiac L. Rev. 13, 1516 (1996). 8
valued and cherished institution. Those last words clearly refer to the vital marriage institution known and sustained in Idaho since before statehood and across the world for millennia, and that is the man-woman marriage institution. Yet serious thinkers have known since the beginning of the gay marriage debate a couple of decades ago that it is not possible as a matter of social reality for same-sex couples to participate in this deeply valued and cherished institution. 18 As we have already demonstrated above and in the Governors Opening Brief at page 34, a society can have only one social institution denominated marriage. As long as the core and constitutive meaning of societys marriage institution is the union of a man and woman,19 a same-sex couple cannot, as a matter of social reality, participate in it; they can only marry or have their marriage recognized in a jurisdiction where marriage has the radically different core meaning of the union of two persons without regard to gender.20 Accordingly, what the Plaintiffs are seekingwhat they are demanding this Court do in the name of equality and libertyis use the full force of constitutional law to suppress the man-woman marriage
18
See, e.g., Brian Bix, Reflections on the Nature of Marriage, in Revitalizing the Institution of Marriage for the Twenty-First Century: An Agenda for Strengthening Marriage 11213 (Alan Hawkins et al. eds., 2002): Marriage is an existing social institution. One might also helpfully speak of it as an existing social good. The complication in the analysis is that one cannot fully distinguish the terms on which the good is available from the nature of the good. As Joseph Raz wrote regarding same-sex marriage, When people demand recognition of gay marriages, they usually mean to demand access to an existing good. In fact they also ask for the transformation of that good. For there can be no doubt that the recognition of gay marriage will effect as great a transformation in the nature of marriage as that from polygamous to monogamous or from arranged to unarranged marriage. 19 As the Governors Opening Brief demonstrated at pages 5354, humankind makes its social institutions by and only by language. See Searle, Social World, supra note 7, at 10915. 20 Scholars have understood this reality since same-sex couple marriages were first seriously proposed. See, e.g., Bix, Reflections, supra note 18, at 11213. 9
institution and mandate in its place a genderless marriage regime.21 Meanwhile, the social reality remains that, even though the law may want to usher same-sex couples into the now-existing marriage institution, it does not have the power to do soalthough it clearly has the power to suppress that institution.22 Marriage is not a commodity, like a widget, to be passed out as a government benefit in one way or another. Rather, in the case of man-woman marriage, it is participation in a deep, rich, constraining, and empowering pre-legal institution, and that is where its value resides.23 Because marriages man-woman meaning provides materially and even uniquely multiple valuable social benefits, to suppress that meaning in marriage and replace it with the radically different genderless meaning is to create a grave risk to Idaho society (if not a virtual certainty): diminution over time and then loss of those valuable social benefits. A genderless marriage regime will not produce those benefits but rather be hostile to them.24
21
Which thereafter will be the only form of state-sanctioned marriage into which any couple, whether man-woman or same-sex, can enter. In this context, we note the POBs further confusion over the institutional realities, appearing at page 28, footnote 8: Marriage licenses are not a scarce resource; issuance of marriage licenses to same-sex couples does not reduce the number available to other couples. That statement has some semblance of truth only if it reads available to other couples who desire to marry into a genderless marriage regime. It is wholly false when referring to man-woman couples desiring to participate in, to marry into, the venerable and revered man-woman marriage institution. A genderless marriage regime issues no marriage licenses for that purpose, and that qualifies as scarcity indeed. 22 See, e.g., Monte Neil Stewart, Marriage, Fundamental Premises, and the Supreme Courts of California, Connecticut and Iowa, 2012 BYU L. Rev. 193, 23943 (Fundamental Premises). 23 Id. at 23439. 24 The federal district court decisions since the U.S. Supreme Courts decision in United States v. Windsor, 133 S. Ct. 2675 (2013), that have ruled in some way or to some extent in favor of same-sex couples do not engage Governor Otters arguments advanced here. Indeed, all but one are devoid of any reference to any kind of social institutional argument for man-woman marriage. See Kitchen v. Herbert, ___ F. Supp. 2d ___, 2013 WL 6697874 (D. Utah Dec. 20, 2013); Obergefell v. Wymyslo, ___ F. Supp. 2d ___, 2013 WL 7869139 (S.D. Ohio Dec. 23, 2013); Bourke v. Beshear, ___ F. Supp. 2d ___, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014); Bostic v. Rainey, ___ F. Supp. 2d ___, 2014 WL 561978 (E.D. Va. Feb. 13, 2014); De Leon v. Perry, ___ F. Supp. 2d ___, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014); Tanco v. Haslam, 10
Although these realities have been long and well documented in the literature,25 the POB ignores them.26 Yet these realities are a bright light exposing the material errors in each of the POBs arguments. The following sections so demonstrate. 3. Plaintiffs Opening Brief erroneously insists on a shriveled, constricted concept of marriage while ignoring the valid broader understanding of marriage sustaining Idahos Marriage Laws against all constitutional attacks. In the great national and constitutional debate over marriage, all arguments advanced in support of genderless marriage are premised on what is variously called the narrow description of marriage, the consent-based vision of marriage, or the close relationship model of marriage. The POB is no exception. It describes marriage at page 6 as and only as a contractual relationship embodying a couples desire to commit themselves publicly to one another, and to undertake legal duties to care for and protect each other and any children they may have, and that constricted view permeates and undergirds all its arguments. Yet that view is erroneous. Much more robustly supported, as an understanding of what marriage is, is the description set forth in the previous section and also demonstrated by the 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014). Only Bishop v. United States ex rel. Holder, ___ F. Supp. 2d ___, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014), now on appeal to the Tenth Circuit with an April 16, 2014 oral argument date, mentioned an argument that redefinition would have a negative impact on the [marriage] institution as a whole, limited its examination of the argument to its presentation in one publication put out by the Witherspoon Institute, and then rejected the argument because it is impermissibly tied to moral disapproval of same-sex couples as a class of Oklahoma citizens. Id. at *32. The decision is devoid of analysis of the social institutional argument for man-woman marriage as advanced by the Governor here, an argument patently not tied to moral disapproval of same-sex couples. 25 See Governors Opening Brief at pages 3149 (collecting authorities). 26 Genderless marriage proponents sometimes try to contest that genderless marriage is a profoundly different institution than man-woman marriage but their counter-argument is driven by expediency; because of their need to elide the argument we make here, in their public pronouncements advocates have carefully minimized the impact of the change they seek. Deborah A. Widiss, Changing the Marriage Equation, 89 Wash. U. L. Rev. 721, 778, 781 (2012). The proponents counter-argument is also based on a quite constricted and factually inaccurate view of what man-woman marriage is in the American experience. In the next section, we demonstrate that views factual inaccuracy. 11
Governors own motion for summary judgment and supporting materials. It is variously called the broad description of marriage, conjugal marriage, or traditional marriage. What we will call the broad description of marriage encompasses the social realities set forth above: the understanding that the institution of marriage was created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing; that marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so; and that marriage has been viewed as an institution . . . inextricably linked to procreation and biological kinship.27 The broad description also encompasses the understanding that marriages social benefits include love and friendship, security for adults and their children, economic protection, and public affirmation of commitment,28 in addition to those described above. In contrast to the broad description of marriage, the narrow view underlying all essential arguments for genderless marriage limits its description of marriage, as the POB does at page 6, to a contractual relationship embodying a couples desire to commit themselves publicly to one another, and to undertake legal duties to care for and protect each other and any children they may have. This constricted description results from the narrow views adherence to what scholars refer to as the close relationship model of marriage, where marriage is seen primarily as a private relationship between two people, the primary purpose of which is to satisfy the
27
United States v. Windsor, 133 S. Ct. 2675, 2718 (2013) (Alito, J., dissenting) (citations omitted). For a more detailed explanation of the broad view of marriage, see Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 99596 (Mass. 2003) (Cordy, J., dissenting), and Girgis, supra note 17, at 2336. 28 Linda C. McClain, The Place of Families: Fostering Capacity, Equality, and Responsibility 6 (2006). 12
adults who enter it. Marriage . . . and children are not really connected.29 This view is of a relationship that has been stripped of any goal beyond the intrinsic emotional, psychological, or sexual satisfaction which the relationship currently brings to the [two adult] individuals involved.30 The narrow view tend[s] to strip marriage of the features that reflect its status and importance as a social institution.31 The narrow view insists that marriage is no more than what the narrow view describes.32 The contest between the broad description and the narrow view is a contest between competing legislative facts, with those supporting the broad description clearly being the stronger. In short, regarding the fact question What is marriage?, the evidence decidedly favors the broad description. . . . [T]he narrow description is profoundly misleading and supplies a quicksand foundation for constitutional analysis and adjudication.33 That the broad description of marriage is a robustly supported legislative fact matters very much in resolving the marriage issue because the narrow vision underlies every argument the POB makes and, even more widely, every argument that all proponents of genderless
29
Institute for American Values, The Future of Family Law: Law and the Marriage Crisis in North America 14 (2005) (Future of Family Law), Opp. App. 92. 30 Institute for American Values, Future of Family Law, supra note 29, at 15, Opp. App. 93; see Scott Yenor, Family Politics: The Idea of Marriage in Modern Political Thought 5, 25373 (2011): The more advocates of autonomy emphasize individual choice, the more marriage and family life are disabled from achieving serious public purposes. . . . Modern advocates of autonomy and personal independence distort the satisfactions of marriage into personal satisfactions. They underestimate how genuinely satisfying marital love creates mutual dependence that limits human autonomy and fail to see how marriage and family life are satisfying because they involve this love and dependence. 31 Institute for American Values, Future of Family Law, supra note 29, at 14, Opp. App. 92. 32 See Stewart, Marriage Facts, supra note 15, at 337. 33 Id. at 350. 13
marriage make.34 These arguments invariably ignore the broad description because fair acknowledgement of the broad description is fatal to those arguments.35 The POBs one serious effort to establish the factual accuracy of the narrow view and thereby negate the broad description falls far short. That effort is an argument that changes over the centuries and recent decades have so altered marriage that it is now nothing more than what the narrow description allows. POB at 46. But what the POB does not and cannot argue is telling; the POB does not and cannot deny that the evolution of marriage has not eliminated or even diminished the core features of marriage captured by the broad description, including manwoman marriages support for procreation within marriage, biological ties, the roles of motherhood and fatherhood, and gender-complementarity. As demonstrated in the Governors Opening Brief at pages 4344, marriage as practiced in Idaho very much includes the core features of marriage captured by the broad description. The POB erroneously rejects the robustly supported legislative fact that marriage in Idahowhat marriage is hereis best captured by the broad description. The POB further errs in building all its arguments on the quicksand foundation of the narrow description, or close relationship model, of marriage. 4. Plaintiffs Opening Brief ignores the compelling interests advanced by the Governor in support of Idahos Marriage Laws. Beginning at page 26, the POB both attributes to the Governor arguments he does not make and ignores the compelling arguments sustaining Idahos Marriage Laws that he does make. We have made those arguments clear in the Governors Opening Brief and in the sections above. What the POB says at pages 2635about history or tradition or responsible
34 35
See Stewart, Fundamental Premises, supra note 22, at 197211. See id. 14
procreation or married opposite-sex couples supposedly make better parents than married same-sex couples or moral disapproval of same-sex couples and relationshipsare all strawmen because those are not the reasons advanced by the Governor in support of man-woman marriage.36 His reasons make up both sides of the same coin. On one side, because of the manwoman marriage institutions norms, ideals, teachings, and influence, it furthers Idahos legitimate interests detailed above. On the other side, because of genderless marriages core meanings and ethos, it communicates and influences in just the opposite direction and, further, pushes the public understanding of marriage away from a more child-centric view of marriage and toward a more adult-centric view. The Plaintiffs have no answers to those reasons; hence, the strawmen. The key point is that Governor Otter, based on robustly supported legislative facts about the marriage institution, has set forth compelling State interests legitimately advanced by its laws preserving the man-woman marriage institution. The POB attempts to evade those interests by turning a blind eyeand seeking to have this Court turn a blind eyeto the reality that this is a contest, a choice (whether made democratically or judicially), between two mutually exclusive and profoundly different social institutions: the man-woman marriage institution versus a genderless marriage regime. Idaho has had to choose. Every State has to choose. For compelling and wholly legitimate reasons, Idaho has chosen to preserve the man-woman
36
The Governor believes that, for purposes of the Plaintiffs facial attack on them, Idahos Marriage Laws do not make a distinction based on sexual orientation; rather those laws make a distinction, or draw a line between two classes, based on the gender-complementarity (or not) of couples, not the sexual orientation of individuals. The Governor does not deny the practical role sexual orientation has in creating man-woman couples and same-sex couples, at the same time noting that it is not entirely rare for couples to marry against sexual orientation for reasons good and sufficient to themselves. 15
marriage institution, in very large measure based on the well-supported judgment that it will be better for children generally. In light of these realities, what the POBs argument boils down to are these four points: 1. Children generally are not really benefited by knowing and being reared by their own mother and father; children really dont need both their father and mother. 2. Children generally are not really benefited by having gender-complementarity in their upbringing. 3. The States only legitimate child-welfare endeavor is to confer benefits, on an equal basis, to all children in its jurisdiction regardless of their family form. 4. Those who do not believe the previous points are bigots and are really motivated only by a bare desire to harm an unpopular minority. Each of these points is fatally flawed. A. Robustly supported legislative facts show that children generally are benefited by knowing and being reared by their own mother and father. We need not belabor this point. The Governors Opening Brief at 3849 sets forth the relevant legislative facts, including numerous social science studies, some of which seriously undermine the no differences studies on which the POB relies. Nothing that the POB and its supporting materials have done can or will make the States legislative facts or their strong support go away, and under settled law it is not sufficient that the POB presents contrary legislative facts. It makes no difference that the [legislative] facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety. Vance v. Bradley, 440 U.S. 93, 112 (1979) (internal quotations omitted).
16
Nor does it advance the POBs argument to invoke the assertions of various professional organizations. Those assertions are no better than the studies from which they are purportedly derived. As a matter of good science, those assertions cannot substitute for otherwise underdeveloped or inadequate studies. In our move to good science, we long ago abandoned the notion that invoking Aristotles name (or that of the American Psychological Association) ended inquiry; we abandoned that notion because the sole test must be what the doing of the science itself discloses. As demonstrated in the Governors Opening Brief at pages 4243, and footnote 37, the studies underlying the organizations assertions are robustly contested.37 B. Robustly supported legislative facts show that children generally are benefited by gender-complementarity in their upbringing. We need not belabor this point either because the Governors Opening Brief at pages 39 40 sets forth the robust support for the fact that children generally benefit from growing up with both a male parent and a female parent, even in the absence of biological ties; in other words, children generally benefit from gender-complementarity in their upbringing. Again, nothing in the POB can or will make that robust support go away. [T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both. United States v. Virginia, 518 U.S. 515, 533 (1996) (citing to and quoting Loving v. Virginia, 388 U.S. 1 (1967) and Ballard v. United States, 329 U.S. 187, 193 (1946)) (alteration [sex] in original).
37
Accord Lofton v. Secy of Dept of Child & Fam. Servs., 358 F.3d 804, 824 (11th Cir. 2004) (noting significant flaws in same-sex parenting studies); Transcript of Oral Argument at 21, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144) (Kennedy, J., recognizing that the sociological information is new. . . . We have five years of information to weigh against 2,000 years of history or more.) (emphasis added); see also Brief of Amici Curiae Professors of Social Science in Support of Defendants-Appellees and Affirmance, Sevcik v. Sandoval, Case No. 1217668 (9th Cir. Jan. 28, 2014), Opp. App. 136. 17
C. Idaho rightly engages in two legitimate but different child-welfare endeavors. The POB at 33 says that the Defendants utterly ignore that children of same-sex couples are harmed by Idahos laws. At least as to Governor Otter, one of the referenced Defendants, this statement is utterly false; the Governors concern for all of Idahos children, including those connected to same-sex couple households, is demonstrated throughout the Governors Opening Brief. See, e.g., Governors Opening Brief at 2, 37, 43, 48. The POB nevertheless tries to make arguments based on the welfare of children connected to same-sex couples. E.g., POB at 3334, 39, 55. Pervading those arguments is the notion that there is only one valid child-welfare endeavor and it pertains to the well-being of children now living in any number of family forms. That notion is an old gambit of genderless marriage proponents.38 The State of Idaho, however, engages in two large but different child-welfare endeavors. One endeavor is the current provision of welfare benefits of various kinds to individual children (directly or through their care-givers) regardless of their varying circumstances. But Idaho also engages in a different and, in its view, even more important, vital, and compassionate endeavor: By preserving the manwoman meaning in marriage, Idaho seeks to maximize the number of children down through the generations who know and are reared by mother and father, who have the benefits of gender complementarity in their upbringing, and who are spared the woes of fatherlessness (and/or motherlessness). The POBs use of the old gambit illuminates well the wisdom of Idahos choices with its two large but different child-welfare endeavors. To maximize benefits to children in same-sex couple households through its first endeavor, Idaho must (so the POB would have it) abandon and undo its second endeavorit must cease to use the man-woman marriage institution to
38
See Stewart, Judicial Redefinition, supra note 6, at 6769. 18
communicate its unique and child-benefitting norms and ideals. Idaho must (so the POB would have it) suppress that institution by implementing a genderless marriage regime, which counters those norms and ideals. Yet given the huge disparity in numbers between children connected to same-sex couple households and all other children, for Idaho to abandon and undo its second endeavor is to minimize rather than maximize benefits to children generallyand that is neither rational nor compassionate. And this reality stands in stark contrast to the POBs reckless rhetoric on page 33 that [f]ar from protecting children, Idahos marriage ban needlessly stigmatiz[es] and humiliate[es] children who are being raised by . . . loving [same-sex] couples. Idaho had to make a tough policy choice and did, rationally and through another justly celebrated pillar of this Nationour democratic process. D. When the Plaintiffs Opening Brief says that the primary purpose and practical effect of Idahos marriage ban is to disadvantage and stigmatize same-sex couples and their children, it is making a patently false and thoroughly baseless statement. The POB at pages 3540 argues that the primary purpose and practical effect of Idahos Marriage Laws is to disadvantage and stigmatize same-sex couples and their children and bases this argument on three points: 1. Because there is no good or legitimate reason for preserving the man-woman meaning in marriage, the only possible explanation for Idahos Marriage Laws is that they are the product of animus, a bare desire to harm an unpopular minority. 2. Supporters of the Marriage Laws have said that one of their purposes is to prevent same-sex couples from marrying, that is, to prevent a genderless marriage regime in Idaho.
19
3. Idahos marriage laws are just like Section 3 of DOMA, which the Supreme Court struck down in United States v. Windsor, 133 S. Ct. 2675 (2013), as the product of animus. Each of these three points is fatally flawed. As to the first point, of course there are good and legitimate reasons for preserving Idahos man-woman marriage institution, and Governor Otter has fully and repeatedly demonstrated those reasons. Those qualify as compelling social benefits, benefits towards which the competing and alternative genderless marriage regime is inimical. As to the second point, of course supporters of man-woman marriage are, and state that they are, opposed to same-sex couples marrying. The only two marriage alternatives available to Idaho are mutually exclusive: the man-woman marriage institution and a genderless marriage regime. The only way a same-sex couple can be married in Idaho in any intelligible sense is by the State implementing, either through democratic processes or by judicial coercion, a genderless marriage regime. So every rational, clear-eyed proponent of genderless marriage is against, and says that she is against, the man-woman marriage institution; she is insisting on a State-sanctioned marriage institution under which gender is irrelevant because only that regime allows same-sex couples to be married. Likewise, every rational, clear-eyed proponent of the man-woman marriage institution is against, and says she is against, a genderless marriage regime because only the man-woman definition preserves all of the societal benefits the marriage institution historically has provided. That does not make her a homophobe, any more than her opponents position makes that opponent a heterophobe. They just have opposing views on what makes the best policy for marriage. So the POBs collection of statements from proponents of man-woman marriage saying they support laws reinforcing the man-woman meaning in marriage
20
and consequently excluding same-sex couples from marriage is not good evidence of animus, ill-will, targeting, a bare desire to harm, or anything of the like. Idahoans generally are not that kind of people. As to the third point, Idahos Marriage Laws are profoundly different from Section 3 of DOMA struck down by Windsor. Windsor fully supports Idahos Marriage Laws. The line that DOMA39 drew and that Windsor examined was between man-woman couples validly married under the laws of a State and same-sex couples also validly married under those same laws. The relevant and extraordinary feature of DOMAs line-drawing was that the federal government, with only very minor and specific exceptions, had never before made a definition of marriage but rather had always deferred to the States; if a State said a couple was married, the federal government treated the couple as married. Windsor deemed this highly unusual feature offensive in two closely related ways. First, it impinged on the authority of the States to regulate and define domestic relations, principally marriage, a power that under our federalism has always been pre-eminently, indeed, virtually exclusively, the prerogative of the States. Second, the line-drawing coupled with the unusual departure from deference to the States traditional authority over marriage suggested that DOMA was targeting same-sex couples for adverse treatment more than it was advancing the various fiscal and uniformity interests proffered in the statutes defense. The POB wrongly equates DOMAs discrimination found unconstitutional in Windsor with Idahos profoundly different decision to preserve the man-woman marriage institution. In the exercise of its sovereign authority, New York elected to experiment with a genderless marriage regime and therefore conferred equal marital status on all couples it deemed married,
39
All references in this section to DOMA are limited to Section 3 of the federal Defense of Marriage Act, 110 Stat. 2419 (1996). 21
man-woman or same-sex. The federal government through DOMA, however, created two classes of married New York couples by treating some of themsame-sex couplesas not married despite New Yorks authoritative pronouncement to the contrary. Windsor held unconstitutional the federal creation of those two classes of married couples and their resulting disparate treatment under federal law. The POB seeks to cast what Windsor held to be unconstitutional as any governmental decision about marriage that distinguishes between man-woman couples and same-sex couples. But there is no justification for such a characterization. Windsor itself said: The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages. 133 S. Ct. at 2696 (emphasis added). Further, large and compelling differences exist between DOMAs decision regarding New York married couples (what Windsor struck down) and Idahos decision to preserve manwoman marriage (what Windsor supports). First, and most obviously, Idaho exercised, just as New York did, its sovereign powers over the marriage institution within its borders, whereas the federal government with DOMA acted without delegated authority because the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce. Windsor, 133 S. Ct. at 2691(quoting Haddock v. Haddock, 201 U.S. 562, 575 (1906)) (emphasis added). Second, Idaho decided to preserve the man-woman marriage institution. Because of the very nature of that institution, Idahos decision is far different, in a profound and substantive way, from the federal governments decision in DOMA. The federal government had no effective or constitutional power to preserve the institution in New York exactly because 22
that State had already used its sovereign powers to implement a genderless marriage regime and thereby de-institutionalize over time man-woman marriage. But Idaho has both effective and constitutional power to preserve the man-woman marriage institution within its borders and has chosen to exercise that power to do just that. Thus, Idahos project of preserving the manwoman marriage institution is far different from the DOMA project and serves powerful legitimate purposes. Yes, Idaho made a choice different from New Yorks choice, but the legitimate purposes and interests to be served by Idahos choice are at least as powerful and valid as those New York thinks it is advancing and, in the judgment of Idahos citizens, will be most beneficial to marriage, to generations of children yet to come, and to society generally. E. The Plaintiffs Opening Brief erroneously reads Windsor as creating a freestanding, federal right to equal dignity. The POB at page 40 reads Windsor as recognizing a free-standing substantive due process right to equal dignity that requires judicial imposition of a genderless marriage regime. Windsor did no such thing. The Supreme Court saw this: New Yorks genderless marriage regime confers an equal marital status on all couples that State authorizes and deems to be married, whether man-woman couples or same-sex couples. That status confers benefits and advances interests, including economic breaks and heightened dignity or social standing. Because the marriage status is equal for all New Yorkers who enjoy it, so too is the dignity conferred by that status. This equal dignity is thus a creation of the State of New York. But this equal dignity is not also a creation of the federal constitution. Because DOMA inflicted harm on married New York same-sex couples by diminishing, with no legitimate purpose, their State-conferred equal dignity in marriage, Windsor vindicated the federal constitutional interests conjoined by the facts of this case, our federalism and equal protection of the laws. In doing so, Windsor certainly did not create a free-standing substantive due process right to equal 23
dignity for people generally or to equal dignity for gay men and lesbians or to equal dignity for same-sex couples relative to marriage. Nothing in the decision sustains that particular notion. And much in the decision defeats that notion, including the express language limiting the holding to a situation where federal legislation operates to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity and thereby is operating to displace this [State-conferred] protection and treating those persons as living in marriages less respected than others . . . . This opinion and its holding are confined to those lawful marriages. Windsor, 133 S. Ct. at 2696.40 5. In attempting to deploy the argument based on the marriages of man-woman couples without procreative capacity or intent, the Plaintiffs Opening Brief yet again ignores the social institutional realities of marriage. The POB at 2930 raises the argument that Idahos Marriage Laws must not really be about the welfare of children and/or must be grossly underinclusive because the State allows marriage for man-woman couples who cannot or will not procreate. Yet this argument ignores, again, the reality that marriage is a social institution. Social institutions are renewed and strengthened by use consistent with the shared public meanings constituting them. [E]ach use of the institution is in a sense a renewal of that institution. Cars and shirts wear out as we use them but constant use renews and strengthens institutions such as marriage . . . .41 Each time a man-woman couple builds a marriageregardless of their reproductive intentions or abilities that act strengthens the man-woman marriage institution and thereby enhances the power of its social communications and influence. Marriage by a same-sex couple does just the opposite
40
The Supreme Court has not read dignity or equal dignity into our body of federal constitutional law as either a free-standing right or a value or even an interpretive guidedespite (or because of) efforts by its counterparts in other countries to do that. See Stewart, Judicial Redefinition, supra note 6, at 10019. 41 Searle, Construction, supra note 4, at 57, App. 396. 24
exactly because, as we demonstrated above, a same-sex couple can only marry or have their marriage recognized in a jurisdiction where the law suppresses the man-woman marriage institution and mandates in its place a genderless marriage regime. That is why the marriage of any same-sex couplejust the opposite of the marriage of any man-woman couplecan only destroy rather than reinforce the source of the valuable social teachings and practices Idaho rightly seeks to promote. Thus, Idahos line drawing is neither over-inclusive nor underinclusive but perfectly precise for the States legitimate purpose. 6. In attempting to make its substantive due process/fundamental right argument, the Plaintiffs Opening Brief yet again ignores the social institutional realities of marriage. In making its substantive due process/fundamental right argument, the POB at pages 40 47 would have this Court believe that the long-recognized fundamental right to enter into a manwoman marriage encompasses, in every way that matters, entry by a same-sex couple into marriage. The Governors Opening Brief at 2124 fully refutes that argument. Further, the social realities of the marriage institution make starkly clear just how novel, how profoundly different from the fundamental right to marry, the Plaintiffs asserted right is. Plaintiffs can marry or have their foreign marriages recognized only if Idaho changes or is forced to change its legal meaning of marriage from the union of a man and a woman to the union of two persons without regard to gender. That is certain. This means that the right Plaintiffs are seeking, in reality and substance, is the right to have a State-imposed genderless marriage regime. This is the only right the State can give them. As we previously demonstrated, although the law has power to suppress the man-woman meaning and thereby de-institutionalize the current marriage institution, the law has no power to usher the Plaintiffs or any other same-sex couples into that venerable institution. The very act of ushering them in will transform the old institution (not all
25
at once, of course, but certainly over time) and make it into a profoundly different institution, one whose meanings, values, practices, and vitality are speculative but certainly different from the meanings, values, practices and vitality up until now inhering in the man-woman marriage institution.42 So there is both a radical and an extremely radical aspect of the fundamental right the Plaintiffs want this Court to recognize: a right to both State creation of a genderless marriage regime and State suppression of the man-woman marriage institution that unavoidably competes with it. That is not a fundamental right in our national and constitutional heritage but is the likely destroyer of one. Because of this point, the POB and all genderless marriage advocates must of necessity embrace the narrow or close relationship description of marriage and try to get the courts to do the same, all the while trying to get them also to turn a blind eye to the broad description of American marriage. The narrow view posits a marriage regime already much like a genderless marriage regime, as noted in Section 3 above. But robust legislative facts sustain the broad description of marriage and therefore sustain what we say here about the extremely radical nature of the fundamental right claimed by the Plaintiffs. Finally, because Idahos Marriage Laws advance compelling state interests and are precisely tailored to achieve their legitimate purposes, they survive even a fundamental right holding. 7. Plaintiffs Opening Brief errs in arguing that Idahos Marriage Laws constitute sex discrimination. The POB at pages 2326 attempts to argue that Idahos Marriage Laws constitute sex discrimination. They do not, and this is not a hard issue. First, the courts have nearly
42
See note 18 supra; see also Stewart, Judicial Redefinition, supra note 6, at 8385. 26
unanimously rejected that argument in the context of marriage cases.43 Second, Idahos Marriage Laws treat men as a class and women as a class equally. Third, marriages provision of the statuses and identities of husband and wife does not constitute government endorsement of the separate spheres tradition or an impermissible sex-role allocation or perpetuate prescriptive sex stereotypes.44 Fourth, the POBs sex discrimination argument, if accepted, would have the Fourteenth Amendments Equal Protection Clause do somethingmandate genderless marriagethat the proposed Equal Rights Amendment, which was advanced to provide greater protection against sex discrimination than the Fourteenth Amendment provides, would not do. What of the quality of debate in states that have not ratified the ERA? Some legislators . . . have explained nay votes on the ground that the ERA would authorize homosexual marriage. The congressional history is explicit that the ERA would do no such thing. Ruth Bader Ginsburg, Ratification of the Equal Rights Amendment: A Question of Time, 57 Tex. L. Rev. 919, 937 (1979) (emphasis added). In the face of all this, the POB at page 25 argues that there is sex discrimination because Idahos Marriage Laws reinforce the expectation that a womans most intimate relationship
43
E.g., Sevcik v. Sandoval, 911 F. Supp. 996, 100405 (D. Nev. 2012); Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 109899 (D. Haw. 2012); Smelt v. Orange, 374 F. Supp. 2d 861, 87677 (C.D. Cal. 2005); Wilson v. Ake, 354 F. Supp. 2d 1298, 130708 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 143 (W.D. Wash. 2004); In re Marriage Cases, 183 P.3d 384, 439 (Cal. 2008); Conaway v. Deane, 932 A.2d 571, 599 (Md. 2007); Hernandez v. Robles, 855 N.E.2d 1, 1011 (N.Y. 2006); Baker v. Vermont, 744 A.2d 864, 880 n.13 (Vt. 1999); Andersen v. King Cnty., 138 P.3d 963, 98789 (Wash. 2006) (en banc); Singer v. Hara, 522 P.2d 1187, 1192 (Wash. App. 1974). 44 Although some cultures and subcultures have hung various sex-roles and hence sex-role stereotypes on the pegs of husband and wife, such sex-roles and stereotypes and any resulting separate spheres tradition are not inherent in the two statuses, and nothing in Idahos Marriage Laws reinforces sex-role stereotypes or seeks to influence husbands and wives in their decisions regarding roles and specializations. Indeed, the husband and wife statuses are the antithesis of a separate spheres ethos exactly because the man and the woman are entering into one and the same spheremarriage. 27
and marriage should be with a man, and that a mans most intimate relationship and marriage should be with a woman. This argument is false to the extent it speaks of intimate relationship because the Marriage Laws do not in any way preclude Plaintiffs or anyone else from forming an intimate relationship with anyone of their choosing and therefore do not reinforce any expectations in that regard. This argument is misleading when it speaks of marriage because, although man-woman marriage requires gender-complementarity in participating couples and is therefore certainly a gendered institution, it does not disfavor men as a class or women as a class. No case holds that sex discrimination obtains and heightened scrutiny therefore applies on a mere showing of a gendered arrangement; always required beyond that is a showing of disfavored treatment of one sex or the other. See, e.g., United States v. Virginia, 518 U.S. 515 (1996). And, again, Idahos legitimate interests powerfully advanced by its Marriage Laws are so compelling that those laws withstand constitutional challenge under any level of judicial scrutiny. 8. Plaintiffs Opening Brief misreads and misapplies Baker v. Nelson, SmithKline, and Loving. A. The POB misreads and misapplies the law governing Supreme Court summary dismissals. Regarding Baker v. Nelson, 409 U.S. 810 (1972), the POB at pages 1618 says it does not apply, but the Governors Opening Brief at pages 1115 demonstrates that it does. Nothing in the POB overcomes that demonstration. The POB asserts that the issues in this case differ from those in Baker because (1) Minnesotas man-woman definition of marriage had not yet been made explicit when Baker was decided and (2) Baker did not expressly address the validity of measures such as Idahos
28
laws prohibiting any relationship other than marriage between a man and a woman from being given the legal effect of marriage.45 As to the first point, the POB is clearly wrong. The Questions Presented in Baker included: 1. Whether [the States] refusal to sanctify [plaintiffs] marriage deprives [plaintiffs] of their liberty to marry and of their property without due process of law under the Fourteenth Amendment. 2. Whether [the States] refusal, pursuant to Minnesota marriage statutes, to sanctify [plaintiffs] marriage because both are of the male sex violates their rights under the equal protection clause of the Fourteenth Amendment. Jurisdictional Statement, Baker v. Nelson, No. 71-1027 (U.S. Feb. 11, 1971), App. 969. Thus, the precise issues presented herewhether a states decision to treat marriage as only the union of a man and a woman violates either the Due Process or Equal Protection Clauseswere directly presented in Baker. The one-man, one-woman definitions of marriage and the Fourteenth Amendment issues arising from those definitions are the same, whether or not Minnesota had expressed its definition in statute or its constitution. The Supreme Court necessarily decided these issues when it summarily dismissed the Baker appeal for want of a substantial federal question. 409 U.S. at 810. Plaintiffs have offered no new arguments related to any of the distinctions they identify that were not necessarily decided by the Supreme Courts summary dismissal in Baker. The POBs second pointwhich focuses on the Marriage Laws preclusion of civil unions (also known as domestic partnerships)is immaterial. Plaintiffs have not argued at any stage of this case that they are entitled (or even desire) to enter into a civil union if they are not
45
To the extent the POB seeks to also make a distinction regarding recognition of foreign marriages, that distinction is necessarily encompassed within the rulings in Baker by the Minnesota Supreme Court and the United States Supreme Court, for the reasons we demonstrate in Section 9 below. 29
allowed to marry under State law. Accordingly, the validity of such provisions in Idahos laws is not before the Court. In any event, those provisions result from clearly rational policy decisions, as shown by this history: Strong and influential proponents of genderless marriage (such as Jonathan Rauch) and equally strong and influential proponents of man-woman marriage (such as Lynn Wardle) made the case that the existence of civil unions laws would weaken, undermine, and damage the social institution of marriage (whatever its core meaning), to societys detriment.46 At the same time, strong and influential proponents of genderless marriage (such as Lee Badgett) and equally strong and influential proponents of man-woman marriage (such as George W. Bush) argued that the existence of civil unions laws would not damage the marriage institution.47 Idaho found the former position more credible. Plaintiffs have not attacked that position. The POB also contends that doctrinal developments by the Supreme Court in application of the Equal Protection and Due Process Clauses require that Baker no longer have precedential effect even on the issues it considered. But summary dispositions are controlling precedent unless and until re-examined by [the Supreme] Court. Tully v. Griffin, 429 U.S. 68, 74 (1976); see also Agostini v. Felton, 521 U.S. 203, 207 (1997) ([L]ower courts should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.);
46
See Jonathan Rauch, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America 49 (1st ed. 2004) (To whatever extent they mimic marriage, [civil union benefits] send the message that, from the law and societys point of view, marriage is no longer unique.); Lynn D. Wardle, Counting the Costs of Civil Unions: Some Potential Detrimental Effects on Family Law, 11 Widener J. Pub. L. 401 (2002) (highlighting 32 notable consequences of civil unions on family law). 47 See Elisabeth Bumiller, Bush Says His Party Is Wrong to Oppose Gay Civil Unions, New York Times, Oct. 26, 2004, http://www.nytimes.com/2004/10/26/politics/campaign/ 26gay.html?_r=0; M.V. Lee Badgett, Will Providing Marriage Rights to Same-Sex Couples Undermine Heterosexual Marriage? Sexuality Res. & Soc. Poly, Sept. 2004, at 1 (surveying five countries, four of which had some form of civil union laws, and concluding that such laws will have no impact on man-woman marriage). 30
accord Conover v. Aetna U.S. Healthcare, Inc., 320 F.3d 1076, 1078 n.2 (10th Cir. 2003) ([T]he Supreme Court instructed us to avoid concluding its more recent cases have, by implication, overruled an earlier precedent.) (internal quotation marks omitted). The POB at page 16 also errs in referencing Justice Ginsburgs comments during the oral argument in Californias Proposition 8 case. She was clearly discussing the precedential value of a summary dismissal in the Supreme Court, not in the lower courts.48 The POB cites no appellate court decision approving a lower courts disregard of a dispositive Supreme Court ruling, summary or otherwise, because of what the lower court perceives to be doctrinal developments. Hicks v. Miranda, 422 U.S. 332 (1975), certainly did not do that. And subsequent Supreme Court decisions reaffirm that it is uniquely the prerogative of the Supreme Court to determine whether earlier Supreme Court decisionssummary or otherwiseretain precedential effect. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). [L]ower courts should follow the case which directly controls, leaving to th[e Supreme Court] the prerogative of overruling its own decisions. Agostini, 521 U.S. at 207. That principle is dispositive here.49
48
Contrary to the POBs assertion, Justice Ginsburg was not the only Justice to mention Baker at the Hollingsworth argument. Pressing counsel for the same-sex couples for a coherent interpretation of the Constitution, Justice Scalia asked when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868 when the Fourteenth Amendment was adopted? . . . [S]ome time after Baker, where we said it didnt even raise a substantial Federal question? Transcript of Oral Argument at 38, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144). 49 Nor can it be argued that subsequent decisions on gay rights have undercut Baker. In none of those cases did the Court consider the constitutionality of state laws defining marriage in manwoman terms. To the contrary, the Court has carefully avoided opining on that issue. See Lawrence v. Texas, 539 U.S. 558, 578 (2003) ([The present case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to 31
B. The POB misreads and misapplies SmithKline. Regarding SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014), the POB at pages 2022 reads it as requiring heightened scrutiny of any state action making a distinction on the basis of sexual orientation.50 The Governors Opening Brief at pages 9, 26 29, however, demonstrates that SmithKline heightened scrutiny applies only to laws whose only basis is animusnot to every classification implicating sexual orientation. We further demonstrate at pages 2829 that to read SmithKline as Plaintiffs do suggests that the [SmithKline] panel used Windsor as a pretense for imposing heightened scrutiny on all sexual orientation discrimination claims without both complying with the well-established test for invoking intermediate scrutiny and openly refusing to follow prior Ninth Circuit law applying rational basis review to claims of sexual orientation discrimination. Nothing in the POB overcomes or calls into serious question our analysis of the proper reading and application of SmithKline. Even though SmithKline heightened scrutiny clearly does not apply in this case, Idahos Marriage Laws can withstand such scrutiny. Those laws fully satisfy the language in SmithKline disfavoring post-hoc rationalizations of prior state action. See 740 F.3d at 482 (Windsor thus requires not that we conceive of hypothetical purposes, but that we scrutinize Congresss actual purposes.). Idahoans understood well before the November 2006 general election enacting the marriage amendment to Idahos constitution that the man-woman marriage institution promoted its unique norms, practices, ideals, and benefits repeatedly demonstrated by
enter.); United States v. Windsor, 133 S. Ct. 2675, 2696 (2013) (This opinion and its holding are confined to those [same-sex] marriages [made lawful by the State].). 50 See note 36 supra. 32
Governor Otterwhile genderless marriage did just the opposite.51 Certainly it has never been a secret that genderless marriage when enshrined in the law sends a socially and culturally powerful message that fathers are dispensable in the lives of their childrenand mothers too, for that matter. It was known and understood well before the 2006 election that the gold standard for the well-being of children generally was a home headed by the married, biological parents. 52 It was partially known and understood before the 2006 election that a genderless marriage regime would be inimical to the religious liberties of large numbers of our Nations churches and peoples of faith,53 an understanding unfortunately verified in multiple instances since as genderless marriage regimes have spread.54 And without question the large bulk of our understanding of vital social institutions such as marriagewhat constitutes them, how they provide social benefits, how they are changed, how they are destroyedhad already been
51
See generally David Popenoe, Life Without Father: Compelling New Evidence That Fatherhood and Marriage Are Indispensable for the Good of Children & Society (1996), App. 52438; David Blankenhorn, Fatherless America: Confronting Our Most Urgent Social Problem (1995) (Fatherless). 52 See, e.g., Institute for American Values, Why Marriage Matters: Twenty-Six Conclusions from the Social Sciences (2002); Popenoe, supra note 51, App. 52438; Blankenhorn, Fatherless, supra note 51. 53 The most widely reported conflict at the time was the one that played out between October 2005 and March 2006 when Massachusetts, bolstered by the 2003 genderless marriage ruling in Goodridge, insisted that religiously affiliated adoption agencies had to serve same-sex couples even though doing so was contrary to religious doctrine and conscience and even though other adoption agencies were able to provide the needed services. Consequently, the premier agency for over a century in the placement of hard-to-place children, Catholic Charities of Boston, felt compelled to withdraw from adoption services. See Daniel Avila, Same-Sex Adoption in Massachusetts, the Catholic Church, and the Good of the Children: The Story Behind the Controversy and the Case of Conscientious Refusals, 27 Childrens Legal Rights J. 1, 913 (2007); see also Hellquist v. Owens, 2002 Sask. Q.B. 506, revd, 2006 Sask. Ct. App. 41; Trinity W. Univ. v. Coll. of Teachers, [2001] 1 S.C.R. 772 (Can.); Dale v. Boy Scouts, 734 A.2d 1196 (N.J. 1999), revd, 530 U.S. 640 (2000). 54 See Governors Opening Br. at 5156. 33
provided by the social sciences.55 Indeed, the application of that understanding to the gay marriage debate was already well underway.56 So the robustly supported and compelling reasons for Idahos Marriage Laws are not some post-hoc rationalization of the kind condemned in SmithKline. Finally, even if SmithKline heightened scrutiny is deemed to apply to Idahos Marriage Laws, those laws remain valid. The vital social interests at stake and protected by those laws are so legitimate, robustly supported, and compelling that they can withstand any level of judicial scrutiny. C. The POB misreads and misapplies Loving. The POB invokes Loving57 to argue that just as white supremacists engrafted antimiscegenation rules onto the marriage institution and were rightly repudiated by the Supreme Court, so people with animus towards gay men and lesbians, with laws like Idahos Marriage Laws, have engrafted the man-woman meaning onto marriage and should likewise be repudiated by this Court. At first blush, this argument is only silly because, of course, the union of a man and a woman has been a core, constitutive meaning of the marriage institution found in virtually every society since pre-history. Idahos Marriage Laws did not add that institutionalized meaning but rather sought to protect and preserve it and the valuable social benefits flowing from it.
55
See generally Searle, Construction, supra note 4 (published in 1995); Victor Nee, Sources of the New Institutionalism, in The New Institutionalism in Sociology 1 (Mary C. Brinton & Victor Nee eds., 2001); Nee & Ingram, supra note 5, at 19 (published in 1998); Lagerspetz, Existence, supra note 8, at 70 (published in 2001); Lagerspetz, Mirrors, supra note 8 (published in 1995). 56 See, e.g., Stewart, Judicial Redefinition, supra note 6, at 7184 (published in 2004); Stewart, Institutional Realities, supra note 4, at 778 (published in 2006). 57 Loving v. Virginia, 388 U.S. 1 (1967). 34
On closer examination, the POBs argument built on the Loving analogy reveals something quite troubling. White supremacists engrafted the anti-miscegenation rules onto the marriage institutionand thereby altered marriage from how it had existed at common law and throughout the millenniato bend that institution into the new role of inculcating white supremacist doctrines into the consciousness of the people generally. Because of the profound teaching, forming, and transforming power that fundamental social institutions like marriage have over all of us, this evil strategy undoubtedly worked effectively for decades. Yet thoughtful and informed people see today in the genderless marriage movement a similar massive political effort to profoundly change the marriage institution in order to bend it into a new role, one in important ways at odds with its ancient and essential roles.
58
All see a big difference between
the immorality of the effort to advance the white supremacist dogma and the morality of the effort to advance the social well-being and individual worth of gay men and lesbians. But that particular difference underscores the highly relevant question whether that moral objective of the genderless marriage movement is sufficiently weighty to justify so bending and altering the marriage institution that has ably sustained society since time immemorial. Governor Otter respectfully submits that this is not a question for the judiciary but for the free, open, democratic process to decide. As Justice Alito noted in Windsor: Same-sex marriage presents a highly
58
Regarding the falsity of the analogy and the unjustness of the strategy to deploy it, see Blankenhorn, Future, supra note 17, at 17279; Girgis, supra note 17; Monte Neil Stewart & William C. Duncan, Marriage and the Betrayal of Perez and Loving, 2005 BYU L. Rev. 555. The POB also invokes Loving v. Virginia, 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S. 374 (1978), and Turner v. Safley, 482 U.S. 78 (1987), for the proposition that marriage is a valued right in our Nation. But these decisions hold no relevance at all here because each decision invalidated a state law withholding marriage from man-woman couples for reasons that have nothing to do with this case. Each of these cases reinforced the right of man-woman couples to enter and participate in the venerable man-woman marriage institution, and that is a completely different endeavor from suppressing that institution and replacing it with the profoundly different genderless marriage regime. 35
emotional and important question of public policybut not a difficult question of constitutional law. 133 S. Ct. at 2714. Certainly, the comparison of laws that protect the man-woman meaning of marriage to anti-miscegenation laws is a false analogy that provides no good basis for any court to mandate the redefinition of marriage. 9. In arguing for a federal constitutional right compelling Idaho to recognize the foreign marriages of same-sex couples, the Plaintiffs Opening Brief makes an unfounded argument that stands our Nations principles of federalism on their head. The POB at pages 4758 argues that the two plaintiff-couples married in States allowing such have some sort of federal constitutional right that obligates Idaho to recognize those marriages in this State. The POB does this without invoking the federal constitutions Full Faith and Credit Clause (which clearly does not support that argument but defeats it)59 and without challenging in this civil action the constitutionality of Section 2 of the federal Defense of Marriage Act (which expressly authorizes Idahos non-recognition of such foreign marriages).60 Most fatal to the POBs argument, however, are the social institutional realities that it continually ignores and tries to get this Court to ignore: No same-sex couple, regardless of where they hold their wedding, can be married in this State in any intelligible sense unless and until, by democratic means or judicial mandate, the legal meaning of marriage in this State is changed from the union of a man and a woman to the union of any two persons. Thus, no same-sex couple marriage can be legally and socially recognized here until the law suppresses this States man-woman marriage institution and replaces it with the profoundly different genderless
59 60
See Governors Opening Brief at 55. 28 U.S.C. 1738C. Because Plaintiffs Complaint does not challenge the constitutionality of 28 U.S.C. 1738C, they cannot mount such a challenge now. Moreover, there has been no compliance with 28 U.S.C. 2403 or Fed. R. Civ. P. 5.1. Thus, 28 U.S.C. 1738C, which carries a strong presumption of constitutionality, e.g., S.E.C. v. Gemstar-TV Guide Intern., Inc., 401 F.3d 1031, 1047 (9th Cir. 2005), governs and completely defeats the POBs recognition of foreign marriages position. 36
marriage regime. In other words, the POB is saying that a single State in the Union, no matter how far removed from Idaho with respect to its marriage culture and ethos, has the power to effect a radical revolution in Idahos domestic relations laws, the power to cause the suppression of this States man-woman marriage institution and its replacement by the radically different genderless marriage regime. That proposition merits no respect. It is directly contrary to settled law.61 Its defects are further illuminated by a credible analogy: If Massachusetts, in its rush to achieve the fullest extension of unlimited personal autonomy, were to legalize polygamy, and if Jane availed herself of such a law by marrying John and Jim there and subsequently those three moved to Idaho and demanded of this State full recognition of both of Janes marriages, Idaho must recognize themaccording to the POBs argument. And that is so even though the Idaho constitution preserves the core monogamous meaning of marriage,62 just as it preserves the core man-woman meaning of marriage. Clearly, the POBs argument stands on its head all principles of our Nations federalism, which, as Windsor said, allows each State the power to regulate domestic relations within its own borders according to its own best policy judgments. 133 S. Ct. at 2691 92. The POBs specious argument, applied in the realm of domestic relations, brings to an end our Nations treasured practice of having the several States serve as laboratories to conduct experiments on social policy, thereby giving the Nation the chance to see how things turn out before adopting the new policy for the entire Nation.63 Now, under the POBs absurd argument,
61 62
See Governors Opening Brief at 5556. Idaho Const. art. I, 4 (prohibiting bigamy and polygamy). 63 As Justice Brandeis famously put it, and as the Supreme Court has often reiterated since, [i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting); accord, e.g., Oregon v. Ice, 555 U.S. 160, 171 (2009). 37
whenever a State undertakes a radical experiment in domestic relations, that experiment must be replicated in the other forty-nine States as soon as modern transportation allows the necessary travelno matter how deleterious the experiments consequences promise to be. The social institutional realities also disclose the error of the POBs argument that Idaho, by not recognizing the foreign marriages of same-sex couples, is acting in an unusual way. See POB at 4851. As Windsor reaffirmed forcefully, it is for the several States to define and regulate marriage within their respective jurisdictions; their authority there is virtually plenary. 133 S. Ct. at 269192. Over the history of this Nation, the States usually have exercised that power to give the laws imprimatur and protection to the man-woman marriage institution. Indeed, before 2003, that is exactly how every State had always exercised that power. Since 2003, that has continued as the usual way, as shown by the enshrining, protecting, and perpetuating efforts of the large majority of the States.64 Yet despite these realities, the POB argues that Idahos preservation of its man-woman marriage institution is an unusual deviation and does so by misleadingly focusing only on Idahos general practice of recognizing manwoman (and monogamous) marriages celebrated in other States. The POBs error, of course, is to ignore that, as a matter of legal and social reality, there can be no recognition here of the foreign marriage of a same-sex couple without there also being here a legal suppression of the man-woman marriage institution accompanied by legal recognition of a State-wide genderless marriage regime. In refusing such a radical course and instead preserving legally and socially its man-woman marriage institution, Idaho is doing what it has always done; it is doing the usual and refusing to do the unusual.
64
See Addendum to Governors Opening Brief at A-1 to A-7. 38
The POB at pages 5456 also errs in arguing for a federal right to recognition of foreign same-sex marriages on the basis of harm to same-sex couples wed elsewhere and the children connected to their relationships. Well-settled constitutional jurisprudence, including that found in Windsor, never suggests that the extent of resulting harm somehow determines the recognition or not of a fundamental substantive due process right. If an interest does not otherwise qualify as a fundamental right, or protected liberty interest, it does not qualify whether harm to the interest is great or little. See, e.g., Washington v. Glucksberg, 521 U.S. 702 (1997); United States v. Juvenile Male, 670 F.3d 999, 101113 (9th Cir. 2012). The same holds true in the equal protection context. Idahos reasons for a classification are adjudged sufficiently good or not independently of the extent of harm to the disfavored class, except where the classification impinges on a fundamental right such as freedom of speech. See, e.g., Dandridge v. Williams, 397 U.S. 471, 47273 (1970). Windsor is fully consistent with this settled law. It did not use the perceived harms to the disfavored class (economic and dignitary) to recognize a fundamental right or to impose heightened scrutiny. The decision contains no language suggesting it did either. The Windsor decision itself makes clear its purpose for examining at some length those perceived harmsto determine whether DOMAs discrimination between two classes of lawfully married couples was of an unusual character and motivated by an improper animus or purpose. 133 S. Ct. at 2693 (referencing Dept of Agric. v. Moreno, 413 U.S. 528, 53435 (1973), and Romer v. Evans, 517 U.S. 620, 633 (1996)). In light of the settled law set forth above and honored by Windsor, any discussion of Plaintiffs plight resulting from the absence of a genderless marriage regime in Idaho does
39
nothing to save from itself the POBs wholly misguided recognition of foreign marriages argument. CONCLUSION Governor Otter respectfully requests that this Court enter judgment against the Plaintiffs claims and dismiss this civil action in its entirety. DATED: March 20, 2014
By
/s/ Thomas C. Perry THOMAS C. PERRY Counsel to the Governor
40
CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this March 20, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Deborah A. Ferguson d@fergusonlawmediation.com Craig Harrison Durham craig@chdlawoffice.com Shannon P. Minter sminter@nclrights.org Christopher F. Stoll cstoll@nclrights.org W. Scott Zanzig scott.zanzig@ag.idaho.gov Clay R. Smith clay.smith@ag.idaho.gov
41
Case 1:13-cv-00482-CWD Document 81-1 Filed 03/20/14 Page 1 of 135
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO SUSAN LATTA and TRACI EHLERS, LORI WATSEN and SHARENE WATSEN, SHELIA ROBERTSON and ANDREA ALTMAYER, AMBER BEIERLE and RACHAEL ROBERTSON, ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) C.L. (BUTCH) OTTER, as Governor of the State ) of Idaho, in his official capacity, and ) CHRISTOPHER RICH, as Recorder of Ada ) County, Idaho, in his official capacity, ) ) Defendants. ) ) and ) ) STATE OF IDAHO, ) ) Defendant-Intervenor. )
Case No. 1:13-cv-00482-CWD
SUPPLEMENTAL APPENDIX IN SUPPORT OF DEFENDANT GOVERNOR OTTERS RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT (Dkt. Nos. 45, 59, 61)
SUPPLEMENTAL APPENDIX TABLE OF CONTENTS

Page(s) Tab 1 Brief of Amici Curiae Professors of Social Science in Support of Defendant-Appellees and Affirmance ............................................................................. 0001-0036 Tab 2 Brief of Amici Curiae Professors Alan J. Hawkins and Jason S. Carroll in Support of Defendants-Appellants and Reversal ............................................................. 0037-0078 Tab 3 Institute for American Values (Dan Cere, Principal Investigator), The Future of Family Law: Law and the Marriage Crisis in North America (2005) ......................... 0079-0129
DECLARATION OF THOMAS C. PERRY
I, Thomas C. Perry, hereby declare and state as follows: 1. I am Counsel to Governor C.L. Butch Otter, Governor of the State of Idaho, and I
represent the Governor in Latta v. Otter, Case No. 1:13-cv-00482-CWD, United States District Court for the District of Idaho. 2. Each of the documents in this Appendix in Support of Defendant Governor Otters
Response in Opposition to Plaintiffs Motion for Summary Judgment is an accurate copy of just what it purports to be. I sign this Declaration under penalty of perjury under the laws of the United States of America. DATED this 20th day of March 2014.
/s/ Thomas C. Perry Thomas C. Perry
TAB 1
Case: Case 12-17668 1:13-cv-00482-CWD 01/28/2014 Document ID: 8956076 81-1 Filed DktEntry: 03/20/14 139 Page Page: 5 of 135 1 of 36
APPEAL NO. 12-17668 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________________________________ BEVERLY SEVCIK, et al. Plaintiffs-Appellants, v. BRIAN SANDOVAL, et al. Defendants-Appellees. __________________________________________ Appeal from the United States District Court for the District of Nevada Civil Case No. 2:12-cv-00578-RCJ-PAL (Judge Robert C. Jones) __________________________________________ BRIEF OF AMICI CURIAE PROFESSORS OF SOCIAL SCIENCE IN SUPPORT OF DEFENDANTS-APPELLEES AND AFFIRMANCE __________________________________________ Abram J. Pafford Pafford Lawrence & Childress PLLC 1776 I Street N.W., Suite 900 Washington, DC 20006 Telephone: (202) 756-4886 Fax: (202) 756-1301 apafford@pafflaw.com Attorney for Professors of Social Science
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TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii INTEREST OF AMICI CURIAE ...............................................................................1 SUMMARY OF THE ARGUMENT ........................................................................2 ARGUMENT .............................................................................................................4 I. II. Compelling Evidence Shows that Children Benefit from the Unique Parenting Contributions of Both Men and Women. ........................................4 The Claim of No Difference in Outcomes of Children Raised by Gay and Lesbian Parents and Intact Biological Parents Is Empirically Undermined by Significant Methodological Limitations. .............................12 A. B. C. III. The APA studies are based on small sample sizes..............................14 The APAs studies are largely based on homogeneous samples. .......16 Most of the samples in the APA-cited studies relied on nonrandom, convenience sampling. ..........................................................18
The Largest Population-Based Studies Do Not Confirm the No Differences Conclusion about Child Outcomes among Same-Sex Parents............................................................................................................20
CONCLUSION ........................................................................................................27 CERTIFICATE OF COMPLIANCE WITH RULES 29-2(d) AND 32(a)(7)(B) .....................................................................................................28 CERTIFICATE OF SERVICE ................................................................................29
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TABLE OF AUTHORITIES Cases Bowen v. Gilliard, 483 U.S. 587 (1987)......................................................................................... 5 Lofton v. Secretary of the Department of Children and Family Services, 358 F.3d 804 (11th Cir. 2004) ....................................................................... 14 Other Authorities Douglas W. Allen et al., Nontraditional Families and Childhood Progress Through School: A Comment on Rosenfeld, Demography, November 2012, http://link.springer.com/article/10.1007/s13524-012-0169x/fulltext.html ..........................................................................................14, 26 Douglas W. Allen, High school graduation rates among children of same-sex households, Rev. Econ. Household, Sept. 2013 ............................................ 22 Paul R. Amato, More Than Money? Mens Contributions to Their Childrens Lives?, in Men in Families, When Do They Get Involved? What Difference Does It Make? 267 (1998) ............................................................................... 8 Paul R. Amato & Fernando Rivera, Paternal Involvement and Childrens Behavior Problems, 61 Journal of Marriage and the Family 375 (1999) ........................................................ 11 Linda Carroll, Dads Empower Kids to Take Chances, NBCNEWS.com, June 18, 2010, http://www.msnbc.msn.com/id/37741738 .......................................... 10 Marilyn Coleman et al., Reinvestigating Remarriage: Another Decade of Progress, 62 Journal of Marriage and the Family 1288 (2000) ...................................................... 15 Scott Coltrane, Family Man (1996) .......................................................................................... 7
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Suzanne A. Denham et al., Prediction of Externalizing Behavior Problems From Early to Middle Childhood: The Role of Parental Socialization and Emotion Expression, in Development and Psychopathology 23 (2000) ....................... 8 M. DeWolff & M. van Izjendoorn, Sensitivity and Attachment: A Meta-Analysis on Parental Antecedents of Infant Attachment, 68 Child Development 571 (1997) ............................... 6 Greg Duncan & Jeanne Brooks-Gunn, Consequences of Growing Up Poor (1999) .................................................... 9 Ruth Feldman, Oxytocin and Social Affiliation In Humans, 61 Hormones and Behavior 380 (2012) ........................................................................................ 5 Mark V. Flinn et al., Fluctuating Asymmetry of Stepchildren, 20 Evolution of Human Behavior 465 (1999) ...................................................................................... 15 Norval D. Glenn, The Struggle for Same-Sex Marriage, 41 Society 25 (2004) ..............9, 19, 20 Sandra L. Hofferth et al., The Demography of Fathers: What Fathers Do, in Handbook of Father Involvement: Multidisciplinary Perspectives 81 (2002) ...................... 7 Michael E. Lamb, Fathers: Forgotten Contributors to Child Development, 18 Human Development 245 (1975) ................................................................................. 5 Robert Lerner & Althea K. Nagai, No Basis: What the Studies Dont Tell Us About Same-Sex Parenting (Marriage Law Project, 2001) ....................................................................... 19 Eleanor Maccoby, The Two Sexes (1998) ............................................................................7, 8, 11 M. Main & J. Solomon, Discovery of an Insecure-Disorganized/Disoriented Attachment Pattern, in Affective Development in Infancy 95 (1986) ............................... 6
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Wendy D. Manning & Kathleen A. Lamb, Adolescent Well-Being in Cohabiting, Married, & Single-Parent Families, 65 Journal of Marriage and the Family 876 (2003) ........................ 4 Loren D. Marks, Same-Sex Parenting and Childrens Outcomes: A Closer Examination of the American Psychological Associations Brief on Lesbian and Gay Parenting, 41 Social Science Research 735 (2012).......14, 15, 16, 17, 19 Sara McLanahan & Gary Sandefur, Growing Up With a Single Parent: What Hurts, What Helps 1 (1994) ...... 4, 9 Kristen Anderson Moore et al., Marriage from a Childs Perspective, Child Trends Research Brief (2002) ............................................................................................................... 4 C.A. Nelson & M. Bosquet, Neurobiology of Fetal and Infant Development: Implications for Infant Mental Health, in Handbook of Infant Mental Health 37, (2d ed. 2000) .......................................................................................................... 6 Affidavit of Professor Steven Lowell Nock, Halpern v. Attorney General of Canada, Case No. 684/00 (Ontario Sup. Ct. Justice 2001), available at http://marriagelaw.cua.edu/Law/ cases/Canada/ontario/halpern/aff_nock.pdf .................................................. 19 Daniel Paquette & Mark Bigras, The Risky Situation: A Procedure for Assessing the Father-Child Activation Relationship, 180 Early Childhood Development and Care 33 (2010) .......................................................................................................... 9 Ross D. Parke, Fatherhood (1996) .................................................................................7, 8, 10 C.J. Patterson, Children of Lesbian and Gay Parents, 63 Child Development 1025 (1992) ............................................................................................................. 17 Trial transcript at 1064 and 1068, Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (No. 09-2292) ............................................................... 6
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David Popenoe, Life Without Father: Compelling New Evidence that Fatherhood & Marriage are Indispensable for the Good of Children & Society 146 (1996) .....................................................................................................5, 9, 10 Thomas G. Powers et al., Compliance and Self-Assertion: Young Childrens Responses to Mothers Versus Fathers, 30 Developmental Psychology 980 (1994) .......... 11 Mark D. Regnerus, How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, 41 Social Science Research 752 (2012) ......................................................passim Mark D. Regnerus, Parental Same-Sex Relationships, Family Instability, and Subsequent Life Outcomes for Adult Children: Answering Critics of the New Family Structures Study with Additional Analysis, 41 Social Science Research 1367 (2012) ..................................................................22, 23, 24, 25 Mark D. Regnerus & Laura B. Luchies, The Parent-Child Relationship and Opportunities for Adolescents First Sex, 27 Journal of Family Issues 159 (2006) ........................................ 11 Michael J. Rosenfeld, Nontraditional Families and Childhood Progress Through School, 47 Demography 755 (2010) ................................................................................ 26 Shmuel Shulman & Moshe M. Klein, Distinctive Role of the Father in Adolescent Separation-Individuation, 62 New Directions for Child and Adolescent Development 41 (1993) ........ 10 Walter R. Schumm, What Was Really Learned From Tasker & Golomboks (1995) Study of Lesbian & Single Parent Mothers?, 95 Psychological Reports 422 (2004) ............................................................................................................. 19 Walter R. Schumm, Methodological Decisions and the Evaluation of Possible Effects of Different Family Structures on Children: The New Family Structures Survey, 41 Social Science Research 1357 (2012) ......................................... 25 v
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Judith Stacey & Timothy Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66 American Sociological Review 159 (2001) ................................................................... 20 Fiona Tasker, Lesbian Mothers, Gay Fathers and Their Children: A Review, 26 Developmental and Behavioral Pediatrics 224 (2005) ............................. 18 W. Brad Wilcox et al., Why Marriage Matters: Twenty-Six Conclusions from the Social Sciences, 14 (3d ed. 2011) ............................................................................. 11
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INTEREST OF AMICI CURIAE1 Amici have studied and published on parental and household distinctions and their association with child and young-adult developmental outcomes. Amicis expertise in these fields will assist the Courts consideration of the issues presented by this case. Amici include (in alphabetical order): Douglas W. Allen (Ph.D., Economics, University of Washington) is Burnaby Mountain Professor of Economics at Simon Fraser University, BC, Canada. David J. Eggebeen (Ph.D., Sociology, University of North Carolina) is an Associate Professor of Human Development and Sociology at Penn State University. Alan J. Hawkins (Ph.D., Human Development and Family Studies, Penn State University) is a Professor of Family Life at Brigham Young University. Byron R. Johnson (Ph.D., Criminology, Florida State University) is a Distinguished Professor of Social Sciences at Baylor University.
No partys counsel authored this brief in whole or in part, and no one other than Amici or their counsel contributed money that was intended to fund preparing or submitting this brief. All parties have consented to the filing of this brief, and thus, Amici need not file a motion for leave to file this brief.
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Catherine R. Pakaluk (Ph.D., Economics, Harvard University) is an Assistant Professor of Economics at Ave Maria University and a Faculty Research Fellow at the Stein Center for Social Research at Ave Maria University. Joseph Price (Ph.D., Economics, Cornell University) is an Assistant Professor of Economics at Brigham Young University. Mark D. Regnerus (Ph.D., Sociology, University of North Carolina) is an Associate Professor of Sociology at the University of Texas at Austin, and a Faculty Research Associate at the Population Research Center of the University of Texas. SUMMARY OF THE ARGUMENT A persistent claim by supporters of same-sex marriage is that there is no difference in the outcomes of children raised by a biological mother and father and those who have been raised by two women or two men. That claim has also been advanced by associations like the American Psychological Association (APA). But as recent scholarship indicates, the claim is difficult to support because nearly all of the studies upon which the no difference assertion is based are rather limited, involving non-random, non-representative samples, often with relatively few participants. Specifically, the vast majority of the studies were based on samples of fewer than 100 parents or children, and typically representative only
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of well-educated, white women, often with elevated incomes. These are hardly representative samples of the lesbian and gay population raising children, and therefore not a sufficient basis to make broad claims about child outcomes of same-sex parenting structures. These and other methodological limitations make the APAs confident no difference conclusion suspect. The claim also contradicts longstanding research asserting the view that the ideal environment for raising children is a stable biological mother and father. The science on comparative parenting structures, especially the research on same-sex households, is relatively new. Therefore, a claim that another parenting structure provides the same level of benefit should be rigorously tested and based on sound methodologies and representative samples. Nearly all of the studies cited by the APA fail to meet those criteria. The only studies based on large, random, representative samples tended to reveal the opposite conclusion, finding significant differences in the outcomes of children raised by parents in a same-sex relationship and those raised by a married biological mother and father. What is clear is that much more study must be done on these questions. But there is no dispute that a biological mother and father provide, on average, an effective and proven environment for raising children. And it is reasonable to conclude that a mother and father function as a complementary parenting unit and that each tends to contribute something unique and beneficial to
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child development. The State of Nevada thus has a rational interest in supporting that proven parenting structure by reserving the title and status of marriage to unions comprised of a man and a woman. ARGUMENT I. Compelling Evidence Shows that Children Benefit from the Unique Parenting Contributions of Both Men and Women. It is a well-established and well-regarded sociological finding that [c]hildren who grow up in a household with only one biological parent are worse off, on average, than children who grow up in a household with both of their biological parents . . . regardless of whether the resident parent remarries. Sara McLanahan & Gary Sandefur, Growing Up With a Single Parent: What Hurts, What Helps 1 (1994); see also Wendy D. Manning & Kathleen A. Lamb, Adolescent Well-Being in Cohabiting, Married, & Single-Parent Families, 65 J. Marriage & Fam. 876, 890 (2003) (The advantage of marriage appears to exist primarily when the child is the biological offspring of both parents.); Kristen Anderson Moore et al., Marriage from a Childs Perspective, Child Trends Research Brief at 1-2 (2002) ([I]t is not simply the presence of two parents . . . but the presence of two biological parents that seems to support childrens development.). A few decades ago Justice William Brennan recognized what was likely
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considered a very unremarkable proposition when he stated that the optimal situation for the child is to have both an involved mother and an involved father. Bowen v. Gilliard, 483 U.S. 587, 614 (1987) (Brennan, J. dissenting). Experts have long contended that both mothers and fathers make unique contributions to parenting. As sociologist David Popenoe explains, [t]he burden of social science evidence supports the idea that gender-differentiated parenting is important for human development and that the contribution of fathers to childrearing is unique and irreplaceable. David Popenoe, Life Without Father: Compelling New Evidence that Fatherhood & Marriage are Indispensable for the Good of Children & Society 146 (1996). Even Professor Michael Lamb, a current advocate of samesex marriage, supported this view before he became a proponent of redefining marriage to include same-sex couples. He stated in no uncertain terms that [b]oth mothers and fathers play crucial and qualitatively different roles in the socialization of the child. Michael E. Lamb, Fathers: Forgotten Contributors to Child Development, 18 Human Dev. 245, 246 (1975). Current research on the psycho-social development of children continues to affirm that the complementarity of an intact family, with a mother and a father serving unique relational roles, is optimal for a childs healthy development. See, e.g., Ruth Feldman, Oxytocin and Social Affiliation In Humans, 61 Hormones & Behav. 380-391 (2012) (noting the different roles that mothers and fathers play
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across species, the importance of those differences to human development, and suggesting that human oxytocin systems may account for the different yet complementary maternal and paternal functions). Even same-sex marriage supporters like Dr. Lamb have admitted that men and women are not completely interchangeable with respect to skills and abilities and that data suggests that the differences between maternal and paternal behavior are more strongly related to either the parents biological gender or sex roles, than to either their degree of involvement in infant care or their attitudes regarding the desirability of paternal involvement in infant care. Trial transcript at 1064 and 1068, Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (No. 09-2292). Dr. Lambs statement is consistent with a great deal of scholarship on the distinct ways in which separate maternal and paternal contributions promote positive child-development outcomes. For example, distinctive maternal
contributions are numerous and significant. The natural biological responsiveness of a mother to her infant fosters critical aspects of neural development and capabilities for interactivity in the infant brain.2 Mothers are also able to extract the
See C.A. Nelson & M. Bosquet, Neurobiology of Fetal and Infant Development: Implications for Infant Mental Health, in Handbook of Infant Mental Health 37-59 (C.H. Zeanah Jr. ed., 2d ed. 2000); M. DeWolff & M. van Izjendoorn, Sensitivity and Attachment: A Meta-Analysis on Parental Antecedents of Infant Attachment, 68 Child Dev. 571-91 (1997); M. Main & J. Solomon, Discovery of an Insecure-
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maximum return on the temporal investments of both parents in a two-parent home because mothers provide critical direction for fathers on routine caretaking activities, particularly those involving infants and toddlers. See Sandra L. Hofferth et al., The Demography of Fathers: What Fathers Do, in Handbook of Father Involvement: Multidisciplinary Perspectives 81 (Catherine Tamis-Lamonda & Natasha Cabrera eds., 2002); Scott Coltrane, Family Man 54 (1996). This direction is needed in part because fathers do not share equally in the biological and hormonal interconnectedness that develops between a mother and a child during pregnancy, delivery, and lactation. In comparison to fathers, mothers generally maintain more frequent and open communication and enjoy greater emotional closeness with their children, in turn fostering a sense of security in children with respect to the support offered by the family structure. Ross D. Parke, Fatherhood 7 (Developing Child Series, Jerome Bruner et al. eds., 1996). Mothers typical mode of parent-child play is predictable, interactive, and geared toward joint problem-solving, which helps children to feel comfortable in the world they inhabit. Eleanor Maccoby, The Two Sexes 266-67 (1998);3 see also Parke, supra, at 5. Mothers also impose more limits
Disorganized Disoriented Attachment Pattern, in Affective Development in Infancy 95-124 (T.B. Brazelton & M.W. Yogman eds., 1986). 3 Professor Maccoby, a distinguished feminist psychologist at Stanford University who championed the idea that sex differences were caused only by socialization, is
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and tend to discipline more frequently, albeit with greater flexibility when compared with fathers. Maccoby, supra, at 273. Mothers also uniquely play a greater role in cultivating the language and communication skills of their children. Parke, supra, at 6. Mothers help children understand their own feelings and respond to the feelings of others, in part by encouraging open discussion of feelings and emotions within the family unit. See Suzanne A. Denham et al., Prediction of Externalizing Behavior Problems From Early to Middle Childhood: The Role of Parental Socialization and Emotion Expression, in Development and Psychopathology 23-45 (2000); Maccoby, supra, at 272. Active maternal influence and input is vital to the breadth and depth of childrens social ties, and mothers play a central role in connecting children to friends and extended family. Paul R. Amato, More Than Money? Mens Contributions to Their Childrens Lives?, in Men in Families, When Do They Get Involved? What Difference Does It Make? 267 (Alan Booth & Ann C. Crouter eds., 1998). Fathers also make distinctive contributions to the upbringing of their children, and positive paternal contributions play a key role in avoiding a variety of negative outcomes that arise with greater frequency in homes where a father is not
now acknowledging the importance of biology in explaining sex differences in parenting. Maccoby, supra, at 314.
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present. Having a father is associated with an increase in positive outcomes for children in domains such as education, physical health, and the avoidance of juvenile delinquency. McLanahan & Sandefur, supra (1994); Greg Duncan & Jeanne Brooks-Gunn, Consequences of Growing Up Poor (1999). As Professor Norval Glenn explains, there are strong theoretical reasons for believing that both fathers and mothers are important, and the huge amount of evidence of relatively poor average outcomes among fatherless children makes it seem unlikely that these outcomes are solely the result of the correlates of fatherlessness and not of fatherlessness itself. Norval D. Glenn, The Struggle for Same-Sex Marriage, 41 Socy 25, 27 (2004). Fathers engage proactively in spontaneous play with their children, and children who roughhouse with their fathers . . . quickly learn that biting, kicking, and other forms of physical violence are not acceptable. Popenoe, supra, at 144. A study conducted by developmental psychologist Daniel Paquette found that fathers are also more likely to supervise children at play while refraining from intervention in the childs activities, a pattern that stimulates exploration, controlled risk-taking, and competition. Daniel Paquette & Mark Bigras, The Risky Situation: A Procedure for Assessing the Father-Child Activation
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Relationship, 180 Early Childhood Dev. & Care 33-50 (2010).4 Boys who do not regularly experience the love, discipline, and modeling of a good father are more likely to engage in what is called compensatory masculinity where they reject and denigrate all that is feminine and instead seek to prove their masculinity by engaging in domineering and violent behavior. Popenoe, supra, at 157. Paternal modes of play activity are only one example of the ways in which fathers encourage their children to take risks. Compared to mothers, fathers are more likely to encourage children to try new things and to embrace novel situations and challenges. See Parke, supra, at 6. One study summarized this aspect of paternal input and observed that [f]athers, more than mothers, conveyed the feeling that they can rely on their adolescents, thus fathers might provide a facilitating environment for adolescent attainment of differentiation from the family and consolidation of independence. Shmuel Shulman & Moshe M. Klein, Distinctive Role of the Father in Adolescent Separation-Individuation, 62 New Dir. Child & Adolesc. Dev. 41, 53 (1993). Fathers also tend to utilize a different discipline style than mothers, in that they discipline with less frequency, but greater predictability and less flexibility in terms of deviating from pre-determined consequences for particular behavior. See
See Linda Carroll, Dads Empower Kids to Take Chances, NBCNEWS.com, June 18, 2010, http://www.msnbc.msn.com/id/37741738.
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Thomas G. Powers et al., Compliance and Self-Assertion: Young Childrens Responses to Mothers Versus Fathers, 30 Dev. Psychol. 980-89 (1994). Children respond differently to paternal discipline, and are comparatively more likely to resist maternal commands and comply with paternal requests. Maccoby, supra, at 274-75. This may be one reason why a number of studies have found that paternal influence and involvement plays an outsized role in preventing adolescent boys from breaking the law and lowering the odds that a teenage girl will become pregnant. See, e.g., Paul R. Amato & Fernando Rivera, Paternal Involvement and Childrens Behavior Problems, 61 J. Marriage & Fam. 375-84 (1999) (finding that paternal involvement is linked to lower levels of delinquency and criminal activity, even after controlling for maternal involvement); Mark D. Regnerus & Laura B. Luchies, The Parent-Child Relationship and Opportunities for Adolescents First Sex, 27 J. Fam. Issues 159-83 (2006) (noting that a study of 2000 adolescents showed that father-daughter relationship, rather than mother-daughter relationship, was an important predictor of whether and when adolescent girls transitioned to sexual activity); see also W. Brad Wilcox et al., Why Marriage Matters: TwentySix Conclusions from the Social Sciences 14, 22-23 (3d ed. 2011) (discussing evidence suggesting that female sexual development is slowed by early childhood exposure to pheromones of biological father, and accelerated by regular early childhood exposure to pheromones of adult male who is not childs biological
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father). In sum, a substantial body of evidence demonstrates that both mothers and fathers make unique contributions to a childs development. Same-sex parenting structures, by definition, exclude either a mother or a father. Certainly same-sex couples, like other parenting structures, can make quality and successful efforts in raising children. That is not in question. But the social science evidence, especially evidence founded on conclusions from population-based samples, suggests that there are unique advantages to a parenting structure consisting of both a mother and a father, political interests to the contrary notwithstanding. Therefore it remains rational for government to provide distinctive recognition and incentive to that proven parenting structure through the status of marriage. II. The Claim of No Difference in Outcomes of Children Raised by Gay and Lesbian Parents and Intact Biological Parents Is Empirically Undermined by Significant Methodological Limitations. Decades of study on various parenting structures yield the near uniform conclusion that a biological mother and father provide optimal child outcomes. Mark Regnerus, How Different Are the Adult Children of Parents Who Have SameSex Relationships? Findings from the New Family Structures Study, 41 Soc. Sci. Research 752, 763 (2012) [hereinafter How Different?]. So the claim that another parenting relationship produces child outcomes just as good as (or even better than) intact biological parents is a surprising proposition, to say the least, and one
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that must be rigorously tested (and until then, viewed with healthy suspicion).5 A closer examination of the studies purporting to show no difference between same-sex parenting and parenting by biological parents suggests that they cannot bear the weight that advocates place on them. Most striking is that all but one failed to involve a large, random, representative sample of the population. While this can be attributed to the fact that such a sample is difficult to locate randomly, it nevertheless ought to raise concern when they are used to support broad public policy changes, like those at issue in this case. In short, it is unconvincing to claim no difference with such thin support. The Eleventh Circuit has recognized these limitations in the research on gay and lesbian parenting, noting significant flaws in the studies methodologies and conclusions, such as the use of small, self-selected samples; reliance on self-report instruments; politically driven hypotheses; and the use of unrepresentative study Although outcomes of children raised by adoptive parents are often positive, outcomes for those children are not typically as positive as children raised by biological parents in an intact marriage, despite the rigorous screening process involved in adoption. Regnerus, How Different?, supra, at 754-55 ([S]tudies of adoptiona common method by which many same-sex couples (but more heterosexual ones) become parentshave repeatedly and consistently revealed important and wide-ranging differences, on average, between adopted children and biological ones. In fact, these differences have been so pervasive and consistent that adoption experts now emphasize that acknowledgement of difference is critical for both parents and clinicians when working with adopted children and teens. (citing Brent Miller et al., Comparisons of Adopted and Non-Adopted Adolescents In A Large, Nationally Representative Sample, 71 Child Dev. 1458 (2000))).
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populations consisting of disproportionately affluent, educated parents. Lofton v. Secy of Dept of Children and Family Servs., 358 F.3d 804, 825 (11th Cir. 2004). A. The APA studies are based on small sample sizes.
Most of the studies that the APA relies on to support its no-difference conclusion are based on small, non-representative, convenience samples of fewer than 100 participants. Loren D. Marks, Same-Sex Parenting and Childrens Outcomes: A Closer Examination of the American Psychological Associations Brief on Lesbian and Gay Parenting, 41 Soc. Sci. Res. 735, 736-38 (2012); see also Douglas W. Allen et al., Nontraditional Families and Childhood Progress Through School: A Comment on Rosenfeld, Demography November 2012, http://link.springer.com/article/10.1007/s13524-012-0169-x/fulltext.html [hereinafter Comment on Rosenfeld] (Although there has been considerable research on the effect of family structure on child outcomes, almost none of the research using nationally representative samples has included same-sex parents as part of the analysis.). The hallmark of a rigorous study is a large, representative pool of participants drawn from a population-based random sample. Regnerus, How Different?, supra, at 754. It is very difficult to draw reliable conclusions from the data used in small samples because the conclusions from such limited studies cannot be confidently extrapolated to the general population and the risk of
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erroneously attributing statistical insignificance to between-group comparisons (that is, mistakenly concluding that there are no differences between groups) is high. Marks, supra, at 736. Even analyzing matched samples, as a variety of studies have done, fails to mitigate the challenge of locating statistically-significant differences when the sample size is small. This is a concern in all social science, but one that is doubly important when there may be motivation to confirm the null hypothesis (that is, that there are in fact no statistically-significant differences between groups). Regnerus, How Different?, supra, at 754. A simple illustration shows the concern with small sample sizes. It is well established that having a stepfather in the home tends on average to result in less optimal child outcomes. Mark V. Flinn et al., Fluctuating Asymmetry of Stepchildren, 20 Evol. Hum. Behav. 465 (1999) (In summary, the absence of a genetic relationship between stepchildren and stepparents may affect the quality and quantity of careincluding specific behaviors that affect nutrition, sleep routines, hygiene, medical attention, work loads, instruction, comforting, protection and so forthwith consequent affect on growth.); Marilyn Coleman et al., Reinvestigating Remarriage: Another Decade of Progress, 62 J. Marriage & Fam. 1288, 1293 (2000) ([M]ost researchers reported that stepchildren were similar to children living with single mothers on the preponderance of outcome measures and that step-children generally were at a greater risk for problems than were children living with both of their parents.). That is relevant for the matter at 15
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hand because every child in a planned gay or lesbian family has at least one nonbiological step parent. But because of the small sample sizes of same-sex parents (especially gay fathers) represented in the studies, these outcome differences have not often surfaced (or even been evaluated), raising additional questions about the reliability of the studies purporting to show no differences. Moreover, comparisons are most often made between children in heterosexual stepfamilies and those in gay unions, a comparison that overlooks the general consensus about the importance of biological connections. Notably, one of the larger studies that the APA cites, but does not discuss, showed significant outcome differences between children raised by same-sex parents and those raised by biological parents in an intact relationship. Overall, the study has shown that children of married couples are more likely to do well at school in academic and social terms, than children of cohabiting and homosexual couples. Marks, supra, at 742-43 (quoting S. Sarantokas, Children In Three Contexts: Family, Education, and Social Development, 21 Children Australia 23 (1996), and describing the studys findings in detail, its comparative statistical strength, and the APAs puzzling de-emphasis of it). B. The APAs studies are largely based on homogeneous samples.
Not only are most of the studies claiming no differences in same-sex parenting based on small sample sizes, they also tend to draw upon homogeneous
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samples of privileged lesbian mothers to represent all same-sex parents. Marks, supra, at 739. Many of the studies cited by the APA, for example, include no minorities with samples predominantly composed of white, well-educated, middleto-upper-class women. Id. at 738. As one study candidly acknowledged, the study sample was small and biased toward well-educated, white women with high incomes. These factors have plagued other [same-sex parenting] studies, and remain a concern of researchers in this field. Id. (quoting Laura Lott-Whitehead & Carol T. Tully, The Family Lives of Lesbian Mothers, 63 Smith Coll. Studies Soc. Work 275 (1993)); see also C.J. Patterson, Children of Lesbian and Gay Parents, 63 Child Dev. 1025, 1029 (1992) (Despite the diversity of gay and lesbian communities, both in the United States and abroad, samples of children [and parents] have been relatively homogenous . . . . Samples for which demographic information was reported have been described as predominantly Caucasian, welleducated, and middle to upper class.). Very few of the APA-cited studies on same-sex parenting analyzed the outcomes of children raised by gay fathers. Only eight of the fifty-nine cited studies included gay fathers, and only four of those included a heterosexual comparison group. Marks, supra, at 739. Systematic research has so far not considered developmental outcomes for children brought up from birth by single gay men or gay male couples (planned gay father families), possibly because of the
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difficulty of locating an adequate sample. Fiona Tasker, Lesbian Mothers, Gay Fathers and Their Children: A Review, 26 Dev. & Behav. Pediatr. 224, 225 (2005). C. Most of the samples in the APA-cited studies relied on nonrandom, convenience sampling.
It is not surprising that the samples in these studies are so homogenous, given that most of the people in them were recruited by use of non-random, convenience (snowball) sampling. Regnerus, How Different?, supra, at 753. For instance, one data-collection effort that has been the subject of at least 19 different peer-reviewed publications to date recruited entirely by self-selection from announcements posted at lesbian events, in womens bookstores, and in lesbian newspapers in Boston, Washington, and San Francisco. Id. This method of recruitment was common among the APA-cited studies. Id. Such snowball sampling is known to have some serious problems because it is impossible to generalize the findings of such a specific subgroup to the general population. Id. (quoting Tom A. Snijders, Estimation on the Basis of Snowball Samples, 36 Bulletin de Methodologie Sociologique 59 (1992)). Because such studies samples are garnered from people who have a great deal in common with each other, how well their findings characterize a broader population of gay families remains unknown. By their own reports, social researchers examining same-sex parenting have repeatedly selected small, nonrepresentative, homogeneous samples of privileged lesbian mothers to represent all
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same-sex parents. Marks, supra, at 739; see also Walter R. Schumm, What Was Really Learned From Tasker & Golomboks (1995) Study of Lesbian & Single Parent Mothers?, 95 Psych. Reports 422, 423 (2004) ([O]ne has to be very careful in interpreting research on homosexual issues and be wary of outcomes when samples are very small and often nonrandom, so the null hypothesis is not rejected but is used for political purposes as if a meaningful result had been obtained).6 If these studies were being used to shed light on the outcomes of children raised by highly educated and affluent middle to upper class white women, their conclusions would have merit. But the studies ought not be generalized to the childhood and adolescent experiences of the wide spectrum of gay and lesbian parents, since gay and lesbian parents are, in reality, economically, racially, and socially far more diverse than those studies imply. The issue is further complicated by the political climate surrounding the fundamental definition of marriage. Given the widespread support for same-sex Other scholars have noted that studies purporting to show no difference between children raised by same-sex couples and those raised by married mothers and fathers share these significant limitations. One of the most extensive critiques of the research was offered by Professor Steven Lowell Nock of the University of Virginia. Nock Aff., Halpern v. Attorney General of Canada, Case No. 684/00 (Ontario Sup. Ct. Justice 2001), available at http://marriagelaw.cua.edu/ Law/cases/Canada/ontario/halpern/aff_nock.pdf. See also Glenn, supra, at 26-27; Schumm, supra, at 423; Robert Lerner & Althea K. Nagai, No Basis: What the Studies Dont Tell Us About Same-Sex Parenting (Marriage Law Project, 2001).
6
19
0026
marriage among social and behavioral scientists, it is becoming politically incorrect in academic circles even to suggest that arguments being used in support of same-sex marriage might be wrong. Glenn, supra, at 25; see also Judith Stacey & Timothy Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66 American Sociol. Rev. 159, 161 (2001) ([T]oo many psychologists who are sympathetic to lesbigay parenting seem hesitant to theorize at all and are apt to downplay the significance of any findings of differences.). Given such limitations characteristic of a nascent area of social-science research, the vast majority of the studies relied upon by the APA for its general claim that there is no difference in outcomes of children raised by gay and lesbian parents and those raised by heterosexual parents are poorly poised to address the broad propositions asserted in this case. III. The Largest Population-Based Studies Do Not Confirm the No Differences Conclusion about Child Outcomes among Same-Sex Parents. Recent research using larger, randomly selected, nationally representative samples suggests that there are significant differences in the outcomes of children raised by parents who have had a same-sex relationship and children raised by intact biological parents. This research, called the New Family Structures Study (NFSS), was conducted on young adults with a very large sample size of nearly 3,000 participants, comprising a racially, socioeconomically, and geographically
20
0027
diverse group reflective of the diversity noted in demographic mappings of the gay and lesbian population in America. Regnerus, How Different?, supra, at 755, 757. The study surveyed adults aged 18-39 about their parent(s) past same-sex relationships, which occurred as recently as a few years ago or as far back as 30 or more years.7 Among that sample, 175 people reported living with a mother who was (and may still be) in a same-sex romantic relationship, and 73 reported living with a father who had been in a same-sex romantic relationship. The study looked at social behaviors, health behaviors, and relationships comparing child outcomes (as reported by the adult children rather than their parents) among various groups, including married biological parents, stepparents, single parents, and parents who had been in a same-sex romantic relationship. When compared with children who grew up in biologically (still) intact, motherfather families, the children of women who reported a same-sex relationship look markedly different on numerous outcomes, including many that are obviously suboptimal (such as education, depression, employment status, or marijuana use). Id. at 764. Some of the statistically significant differences where adult children who reported living in a household with their mother and her partner for at least some period of time (denoted below as MLRthat is, mother in a lesbian The NFSS may best capture what might be called an earlier generation of children of same-sex parents, and includes among them many who witnessed a failed heterosexual union.
7
21
0028
relationship) fared worse than children raised by intact biological parents (denoted below as IBFthat is, intact biological family) included: receiving welfare while growing up (17% of the IBF group and 70% of the MLR group), currently receiving public assistance (10% of the IBF group and 49% of the MLR group), current full-time employment status (49% of the IBF group and 17% of the MLR group), current unemployment (8% of the IBF group and 40% of the MLR group), having an affair while married or cohabitating (13% of the IBF group and 38% of the MLR group), having been touched sexually by a parent or other adult caregiver (2% of the IBF group and 26% of the MLR group), and having been forced to have sex against their will (8% of the IBF group and 27% of the MLR group). Mark Regnerus, Parental Same-Sex Relationships, Family Instability, and Subsequent Life Outcomes for Adult Children: Answering Critics of the New Family Structures Study with Additional Analysis, 41 Soc. Sci. Res. 1367, 1372-74 (2012) [hereinafter Parental Same-Sex Relationships]; see also Douglas W. Allen, High school graduation rates among children of same-sex households, Rev. Econ. Household, Sept. 2013 (Children living with gay and lesbian families in 2006 were about 65% as likely to graduate compared to children living in opposite sex marriage families.).
22
0029
Because of the smaller sample size for fathers who have had gay relationships, there were not as many significant findings as compared to mothers who have had lesbian relationships. Nevertheless, adult children of fathers who are or have been in a same-sex relationship are more apt than [adult children raised by intact biological parents] to smoke, have been arrested, pled guilty to non-minor offenses, and report more numerous sex partners. Regnerus, How Different?, supra, at 764. The study does not purport to assess causation or definitively answer political questions about family structures. Indeed, it would be difficult, if not impossible, to precisely determine causation under these circumstances. But it is noteworthy that the groups display numerous significant distinctions, which directly undermine the APAs no differences hypothesis. When the NFSS-based study was released in summer 2012, it initiated much heated discussion about same-sex parenting, and encountered widespread criticism and a level of scrutiny unusual for a published sociological study based on nationally representative data. Regnerus, Parental Same-Sex Relationships, supra, at 1367. One of the most frequent criticisms by supporters of same-sex marriage was that the study compared apples to oranges because it compared the adult children of stably intact biological parents with adult children of stably intact same-sex households and adult children whose mother or father left a heterosexual
23
0030
union for a same-sex one. Id. But as the authors follow-up study noted, that criticism is unfair for at least two reasons. First, if stability is a key asset for households with children, then it is sensible to use intact biological families in any comparative assessment. Id. at 1368. Indeed, a primary problem of nearly all previous studies is that they seldom included a married biological family control group. Id. at 1368-69. Second, that most of the same-sex households in the study were unstable at some point does not mean that the study undercounted stable same-sex households; it could just as plausibly be interpreted as showing that same-sex relationships are often shortlived. Id. The latter alternative is possible, if not probable, given other research on the comparative volatility of lesbian relationships. A study of Norwegian and Swedish same-sex marriages notes that divorce risk is higher in same-sex marriages and that the risk of divorce for female partnerships actually is more than twice that for male unions. Moreover, early same-sex marriagesthose occurring shortly after a shift in marriage lawexhibited a similar risk of divorce as did more recent unions, suggesting no notable variation in instability over time as a function of new law or pent-up demand among more stable, longstanding relationships. The study authors estimate that in Sweden, 30% of female marriages are likely to end in divorce within 6 years of formation, compared with 20% for male marriages and 13% for heterosexual ones. Id. at 1370 (emphasis added) (quoting Gunnar Anderson et al., The Demographics
24
0031
of Same-Sex Marriages In Norway and Sweden, 43 Demography 79, 89 (2006)).8 Although this unanswered, empirically unknown question remains, what is clear is that there remains much to be studied in this domain, and hence confident assertions of no difference ought to be viewed with suspicion. As the studys author indicated: Perhaps in social reality there are really two gold standards of family stability and context for childrens flourishinga heterosexual stablycoupled household and the same among gay/lesbian householdsbut no population-based sample analysis is yet able to consistently confirm wide evidence of the latter. Moreover, a stronger burden of proof than has been employed to date ought to characterize studies which conclude no differences, especially in light of longstanding reliance on nonrandom samples of unknown bias and the high risk of making [significant] errors in small-sample studies. Simply put, the science here is young. Until much larger random samples can be drawn and evaluated, the probability-based evidence that exists suggests that the biologically-intact two-parent household remains an optimal setting for long-term flourishing of children. Id. at 1377 (citations omitted); see also Walter R. Schumm, Methodological Decisions and the Evaluation of Possible Effects of Different Family Structures on Children: The New Family Structures Survey, 41 Soc. Sci. Research 1357-66 (2012) (validating methodological decisions in New Family Structures Study, and noting similar decisions in other large-scale surveys). Other population-based studies have similarly identified better outcomes for Although gay mens relationships appear more stable than lesbian relationships, they are less likely to be monogamous. Id. (citing Colleen Hoff & Sean Beougher, Sexual Agreements Among Gay Male Couples, 39 Arch. Sex. Beh. 774 (2010)).
8
25
0032
children raised by a biological mother and father than children raised in other parenting structures. In assessing group differences in academic progress through school, Michael J. Rosenfeld noted no differences in school progress for children raised by same-sex parents. Michael J. Rosenfeld, Nontraditional Families and Childhood Progress Through School, 47 Demography 755 (2010). But a reanalysis of his high-quality, census-based samplethis time including the children of all couples, not just those who were residentially stable for at least five years revealed that children being raised by same-sex couples are 35% less likely to make normal progress through school. Allen, Comment on Rosenfeld, supra (noting findings that are strikingly different from those of the original [Rosenfeld] study). Thus Rosenfelds original no differences conclusion may be a result of dropping more unstable households from his analytic sample. Indeed, no existing study yet bears the ability to randomly compare large numbers of children raised by gay couples with the same among heterosexual couples over a long period of time. The social science of same-sex parenting structures remains young, and subject to significant limitations about what can be known, given that the influence of household structures and experiences on child outcomes is not a topic for experimental research design. Yet those analyses that employ large population-based samples continue to document differences. With so many significant unanswered questions about whether children develop as well in
26
0033
same-sex households as in opposite-sex households, it remains prudent for government to continue to recognize marriage as a union of a man and a woman, thereby promoting what is known to be an ideal environment for raising children. CONCLUSION For the foregoing reasons, Amici urge this Court to affirm the decision of the lower court.
Dated: January 28, 2014 Respectfully submitted,
s/ Abram J. Pafford Abram J. Pafford Pafford Lawrence & Childress PLLC 1776 I Street N.W., Suite 900 Washington, DC 20006 Telephone: (202) 756-4886 Fax: (202) 756-1301 apafford@pafflaw.com Attorney for Professors of Social Science
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CERTIFICATE OF COMPLIANCE WITH RULES 29-2(d) AND 32(a)(7)(B) Certificate of Compliance With Type-Volume Limitation, Typeface Requirements, and Type Style Requirements. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,080 words, excluding parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. Civ. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Word 2007 in 14-point Times New Roman.
Dated: January 28, 2014 s/ Abram J. Pafford Abram J. Pafford
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CERTIFICATE OF SERVICE I hereby certify that on January 28, 2014, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. All participants in the case are registered CM/ECF users and will be served by the appellate CM/ECF system.
s/ Abram J. Pafford Abram J. Pafford
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TAB 2
Case 1:13-cv-00482-CWD Document 81-1 Filed 03/20/14 Page 42 of 135 Appellate Case: 13-4178 Document: 01019200673 01019200443 Date Filed: 02/10/2014 Page: 1
Case Nos. 13-4178, 14-5003, 14-5006 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT a
DEREK KITCHEN, individually, et al., Plaintiffs-Appellees, v. GARY R. HERBERT, in his official capacity as Governor of Utah, et al., Defendants-Appellants. MARY BISHOP, et al., Plaintiffs-Appellees, and SUSAN G. BARTON, et al., Plaintiffs-Appellees/Cross-Appellants, v. SALLY HOWE SMITH, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma, Defendant-Appellant/Cross-Appellee.
Appeal from the United States District Court for the District of Utah, Civil Case No. 2:13-CV-00217-RJS
Appeal from the United States District Court for the Northern District of Oklahoma, Civil Case No. 04-CV-848-TCK-TLW
__________________________________________ BRIEF OF AMICI CURIAE PROFESSORS ALAN J. HAWKINS AND JASON S. CARROLL IN SUPPORT OF DEFENDANTS-APPELLANTS AND REVERSAL __________________________________________ Lynn D. Wardle, Esq. Brigham Young University Law School Room 518 Provo, UT 84602 Telephone: (801) 422-2617 wardlel@law.byu.edu Attorney for Professors Hawkins and Carroll
0037
TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................... i TABLE OF AUTHORITIES ................................................................................... iii INTEREST OF AMICI CURIAE ...............................................................................1 SUMMARY OF THE ARGUMENT ........................................................................1 ARGUMENT .............................................................................................................3 I. Marriage Is a Social Institution With Practical Benefits that Depend on Its Social, Linguistic, and Legal Meaning; Altering that Meaning will Necessarily Alter Those Benefits. ..................................3 A. Marriage is a social institution that exists to encourage important human behaviors for vital public ends .......................3 B. Because marriage is a social institution with a public purpose and not only a vehicle for accommodating private arrangements, altering its basic definition will necessarily alter the social benefits it produces ..........................6
II.
Recent Legal Changes to the Institution of Marriage and to Marriage-Related Expectations Confirm that Altering the Meaning of Marriage Would Likely Have Unintended and Negative Consequences for Children ....................................................9
III. Redefining Marriage in Non-Gendered Terms Will Likely Harm the Interests of Children by Diminishing the Relevance and Value of Marriage and Fatherhood to Heterosexual Men...................16 A. Traditional, gendered marriage is the most important way heterosexual men create their masculine identities. Marriage forms and channels that masculinity into the service of their children and society. Redefining marriage to include same-sex couples would eliminate gender as a crucial element of marriage and thus undermine marriages power to shape and guide masculinity for those beneficial ends .................................................................18
i
0038
B. Abandoning the gendered definition of marriage, thereby weakening the connection of heterosexual men to marriage and fatherhood, will harm the States interests in maximizing the welfare of children ......................................23 CONCLUSION ........................................................................................................28 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ......................................31 CERTIFICATE OF DIGITAL SUBMISSION .......................................................34
ii
0039
TABLE OF AUTHORITIES
CASES
Goodridge v. Dept of Pub. Health 798 N.E.2d 941 (Mass. 2003) ................................................................................9 Hernandez v. Robles 855 N.E.2d 1 (N.Y. 2006) ......................................................................................6 Lewis v. Harris 908 A.2d 196 (N.J. 2006).......................................................................................9 United States v. Windsor 133 S. Ct. 2675 (2013) .......................................................................................8, 9 Williams v. North Carolina 317 U.S. 287 (1942) ...............................................................................................5
OTHER AUTHORITIES
A.R. RADCLIFFE-BROWN, STRUCTURE AND FUNCTION IN PRIMITIVE SOCIETY (1952) .................................................................................................................3, 4 ALLEN M. PARKMAN, GOOD INTENTIONS GONE AWRY: NO-FAULT DIVORCE AND THE AMERICAN FAMILY (2000) ..................................................................... 10, 13 Andrew Cherlin, The Deinstitutionalization of American Marriage, 66 J. MARRIAGE FAM. 848 (2004) ...............................................................................23 ANDREW J. CHERLIN, THE MARRIAGE-GO-ROUND: THE STATE OF MARRIAGE AND THE FAMILY IN AMERICA TODAY (2009) ....................................................... 13, 27 Barara Dafoe Whitehead, THE DIVORCE CULTURE: RETHINKING OUR COMMITMENTS TO MARRIAGE AND FAMILY (1996) .............................................11 iii
0040
Barbara Dafoe Whitehead, The Experts Story of Marriage 7 (A Council on Families in Am. Working Paper for the Marriage in Am. Symposium, Working Paper No. WP14, 1992) .........................................................................................4 Betsey Stevenson & Justin Wolfers, Bargaining in the Shadow of the Law: Divorce Law and Family Distress, 121 Q.J. ECON. 267 (2006) ........................................10 Daniel Cere, The Conjugal Tradition in Postmodernity: The Closure of Public Discourse?, Paper Presented at Re-visioning Marriage in Postmodern Culture Conference, 4-5 (Dec. 2003) ..............................................................................7, 8 Donald Moir, A New Class of Disadvantaged Children, in IT TAKES TWO: THE FAMILY IN LAW AND FINANCE 63, 67-68 (Douglas W. Allen & John Richards eds., 1999) ............................................................................................................11 DOUGLASS NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE, AND ECONOMIC PERFORMANCE (1990) ............................................................................................1 E. MAVIS HETHERINGTON & JOHN KELLY, FOR BETTER OR FOR WORSE: DIVORCE RECONSIDERED (2002) .........................................................................................11 G. ROBINA QUALE, A HISTORY OF MARRIAGE SYSTEMS (1988) ...............................6 JAMES Q. WILSON, THE MARRIAGE PROBLEM: HOW OUR CULTURE HAS WEAKENED OUR FAMILIES (2002) .............................................................................................5 Jason S. Carroll & David C. Dollahite, Whos My Daddy? How the Legalization of Same-Sex Partnerships Would Further the Rise of Ambiguous Fatherhood in America, in WHATS THE HARM?: DOES LEGALIZING SAME-SEX MARRIAGE REALLY HARM INDIVIDUALS, FAMILIES OR SOCIETY (Lynn D. Wardle ed., 2008). ................................................................... 24, 25, 26 JUDITH S. WALLERSTEIN ET AL., THE UNEXPECTED LEGACY OF DIVORCE: THE 25 YEAR LANDMARK STUDY (2000) ............................................................ 10, 13, 14 iv
0041
KATHRYN EDIN & TIMOTHY J. NELSON, DOING THE BEST I CAN: FATHERHOOD IN THE INNER CITY (2013) ........................................................................................22 KAY HYMOWITZ, ET AL, KNOT YET: THE BENEFITS AND COSTS OF DELAYED MARRIAGE IN AMERICA (2013) ............................................................................27 KRISTIN ANDERSON MOORE ET AL., CHILD TRENDS, MARRIAGE FROM A CHILDS PERSPECTIVE: HOW DOES FAMILY STRUCTURE AFFECT CHILDREN AND WHAT CAN WE DO ABOUT IT? (June 2002) ....................................................................24 LINDA J. WAITE ET AL., INSTITUTE FOR AM. VALUES, DOES DIVORCE MAKE PEOPLE HAPPY? FINDINGS FROM A STUDY OF UNHAPPY MARRIAGES (2002) ...................11 Linda J. Waite et al., Marital Happiness and Marital Stability: Consequences for Psychological Well-Being, 38 SOC. SCI. RES. 201 (2009) ............................ 12, 25 Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage As a Social Institution: A Reply to Andrew Koppelman, 2 U. ST. THOMAS L. J. 33 (2004) .....4 Matthew D. Bramlett & William D. Mosher, CDC, First Marriage Dissolution, Divorce and Remarriage: United States, ADVANCE DATA NO. 323 (2001) ........14 Monte Neil Stewart, Judicial Redefinition of Marriage 21 CAN. J. FAM. L. 11 (2004) .................................................................................7 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828) .6 PAUL R. AMATO & ALAN BOOTH, A GENERATION AT RISK: GROWING UP IN AN ERA OF FAMILY UPHEAVAL (1997) ................................................................. 11, 12, 25 Paul R. Amato & Bryndl Hohmann-Marriott, A Comparison of High- and LowDistress Marriages That End in Divorce, 69 J. MARRIAGE & FAM. (2007) ........11
v
0042
Paul R. Amato, The Impact of Family Formation Change on the Cognitive, Social, and Emotional Well-Being of the Next Generation, 15 FUTURE OF CHILDREN, Fall 2005 ................................................................................................. 12, 13, 27 ROBERT GEORGE ET AL., WHAT IS MARRIAGE? MAN AND WOMAN: A DEFENSE (2012) .....................................................................................................................8 Rose McDermott et al., Breaking Up Is Hard to Do, Unless Everyone Else Is Doing It Too: Social Network Effects on Divorce in a Longitudinal Sample, 92 SOC. FORCES 491(2013) .......................................................................................14 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (1755) ..................6 Sara McLanahan, Diverging Destinies: How Children Are Faring Under The Second Demographic Transition, 41 DEMOGRAPHY 607 (2004) .................. 18, 20 STEVEN L. NOCK, MARRIAGE IN MENS LIVES (1998) .............................................19 Victor Nee & Paul Ingram, Embeddedness and Beyond: Institutions, Exchange, and Social Structure, in THE NEW INSTITUTIONALISM IN SOCIOLOGY (Mary C. Brinton & Victor Nee eds., 1998) ..........................................................................4 William J. Doherty et al., Responsible Fathering: An Overview and Conceptual Framework, 60 J. MARRIAGE & FAM. 277 (1998) ...............................................20 WILLIAM J. DOHERTY, ET AL., INSTITUTE FOR AM. VALUES, WHY MARRIAGE MATTERS: TWENTY-ONE CONCLUSIONS FROM THE SOCIAL SCIENCES (2002) .......5 WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD: TEN PRINCIPLES (2006) .....................................................................................................................8
RULES
Fed. R. App. P. 29 ......................................................................................................1
vi
0043
Fed. R. App. P. 32 ....................................................................................................31
vii
0044
INTEREST OF AMICI CURIAE1 Alan J. Hawkins and Jason S. Carroll are professors of Family Life at Brigham Young University. Professor Hawkins earned his Ph.D. in Human
Development and Family Studies from Penn State University. Professor Carroll earned his Ph.D. in Family Social Science from the University of Minnesota. They have studied extensively and published widely on fatherhood, marital formation and dissolution, interventions to strengthen marriages, and how marriage as a social institution affects human behavior. Their expertise in these fields will assist the Courts consideration of the issues presented by this case. SUMMARY OF THE ARGUMENT There is no dispute among social scientists that social institutions profoundly affect human behavior. They provide human relationships with meaning, norms, and patterns, and in so doing encourage and guide conduct. Nobel Laureate
Douglass North has described institutions as the humanly devised constraints that shape human interaction. DOUGLASS NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE,
AND
ECONOMIC PERFORMANCE 3 (1990). That is their function. And
No partys counsel authored this brief in whole or in part or contributed money that was intended to fund preparing or submitting the brief, and no one other than amicus or his counsel contributed money that was intended to fund preparing or submitting this brief. See Fed. R. App. P. 29(c)(5). All parties have consented to the filing of this brief. The views expressed herein are those of the amici and not necessarily those of Brigham Young University. 1
0045
when the definitions and norms that constitute a social institution change, the behaviors and interactions that the institution shapes also change. Marriage is societys most enduring and essential institution. From ancient times to the present, it has shaped and guided sexual, domestic, and familial relations between men, women, and their children. As with any institution,
changing the basic definition and social understanding of marriagesuch as by abandoning its gendered definitionwill change the behavior of men and women in marriage and even affect whether they enter marriage in the first place. Whether deemed good or bad, redefining marriage away from its historically gendered purposes will have significant consequences. We know this, as discussed below, not only as a matter of sound theory, logic, and common sense but from experience with other changes to marriage and marriage-related expectations. Specifically, the advent of no-fault divorce changed the legal and social presumption of permanence in marriage. That change had profound consequences. While affording adults greater autonomy and facilitating an easier end to dangerous or unhealthy relationships, it also resulted in increased numbers of divorces from low-conflict marriages, created a tangible sense of fragility for all marriages, and left more children to be raised without one of their parents, typically the father, with attendant adverse consequences.
2
0046
Although it is far too early to know exactly how redefining marriage to include same-sex couples will change marriage, Professor Hawkins and Professor Carroll demonstrate that such a significant change will likely further weaken heterosexual mens connection to marriage and their children. This, in turn, will likely increase the risk that more children will be raised without the manifest benefits of having their fathers married to their mothers and involved day to day in their lives. These risks justify States in cautiously hesitating before redefining marriage in non-gendered terms. ARGUMENT I. Marriage Is a Social Institution With Practical Benefits that Depend on Its Social, Linguistic, and Legal Meaning; Altering that Meaning Will Necessarily Alter Those Benefits. A. Marriage is a social institution that exists to encourage important human behaviors for vital public ends.
Social institutions exist primarily to guide and channel human behavior in ways that benefit society. As Utah notes in its opening brief (at 53 n.15),
preeminent social anthropologist A. R. Radcliffe-Brown described social institutions as a means for society to order the interactions of persons in social relationships. A.R. RADCLIFFE-BROWN, STRUCTURE AND FUNCTION IN PRIMITIVE SOCIETY 10-11 (1952). In social institutions, the conduct of persons in their interactions with others is controlled by norms, rules, or patterns. Id. As a consequence, a person [in a social institution] knows that he [or she] is expected 3
0047
to behave according to these norms and that the other person should do the same. Id. Through such rules, norms, and expectationssome legal, others cultural social institutions become constituted by a web of public meaning. See Victor Nee & Paul Ingram, Embeddedness and Beyond: Institutions, Exchange, and Social Structure, in THE NEW INSTITUTIONALISM
IN
SOCIOLOGY 19 (Mary C. Brinton &
Victor Nee eds., 1998) (An institution is a web of interrelated normsformal and informalgoverning social relationships.). Social institutions, and the language we use to describe them, in large measure define relationships and how we understand them and act within them. [L]anguageor more precisely, normative vocabularyis one of the key cultural resources supporting and regulating any [social] institution. Nothing is more essential to the integrity and strength of an institution than a common set of understandings, a shared body of opinions, about the meaning and purpose of the institution. And, conversely, nothing is more damaging to the integrity of an institution than an attack on this common set of understandings with the consequent fracturing of meaning. Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage As a Social Institution: A Reply to Andrew Koppelman, 2 U. ST. THOMAS L. J. 33, 52-53 (2004) (quoting Barbara Dafoe Whitehead, The Experts Story of Marriage 7 (Council on Families in Am. Working Paper No. WP14, 1992)). Marriage is a vital institutionfew dispute that. See, e.g., WILLIAM J. DOHERTY
ET AL.,
INSTITUTE
FOR
AM. VALUES, WHY MARRIAGE MATTERS: 4

0048
TWENTY-ONE CONCLUSIONS
FROM THE
SOCIAL SCIENCES 8-9 (2002) [hereinafter
DOHERTY, WHY MARRIAGE] (At least since the beginning of recorded history, in all the flourishing varieties of human cultures documented by anthropologists, marriage has been a universal human institution.). Courts have long recognized the institutional nature of marriage. See, e.g., Williams v. North Carolina, 317 U.S. 287, 303 (1942) ([T]he marriage relation [is] an institution more basic in our civilization than any other.). Thus, although serving many private ends, marriages institutional nature means that it is not merely a private arrangement. It exists to shape and guide human behavior to serve public and social purposes. And those public purposes have always centered on uniting a man and a woman to order their sexual behavior and maximize the welfare of their children: Marriage exists in virtually every known human society. . . . As a virtually universal human idea, marriage is about the reproduction of children, families, and society. . . . [M]arriage across societies is a publicly acknowledged and supported sexual union which creates kinship obligations and sharing of resources between men, women, and the children that their sexual union may produce. DOHERTY, WHY MARRIAGE, supra, at 8-9. That has been the social, linguistic, and legal meaning of marriage from ancient times and continues in contemporary society. See, e.g., JAMES Q. WILSON, THE MARRIAGE PROBLEM: HOW OUR
CULTURE HAS WEAKENED OUR FAMILIES 24 (2002) ([A] lasting, socially enforced obligation between man and woman that authorizes sexual congress and the 5
0049
supervision of children exists and has existed [i]n every community and for as far back in time as we can probe); G. ROBINA QUALE, A HISTORY OF MARRIAGE SYSTEMS 2 (1988) (Marriage, as the socially recognized linking of a specific man to a specific woman and her offspring, can be found in all societies.) ; SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (1755) (marriage is the act of uniting a man and woman for life); NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828) (same). Indeed, until very recently, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006). And until a few years ago, the law universally reflected and reinforced that historical, cultural, and linguistic understanding. B. Because marriage is a social institution with a public purpose and not only a vehicle for accommodating private arrangements, altering its basic definition will necessarily alter the social benefits it produces.
Abandoning marriages gendered definition and redefining it in non gendered terms would fundamentally alter its meaning and many of its the public purposes. That necessarily follows from the very nature of marriage as a social institution. As Professor Daniel Cere of McGill University has explained:
Definitions matter. They constitute and define authoritative public knowledge. . . Changing the public meaning of an institution changes the institution. 6
0050
[The
change] inevitably shapes the social understandings, the practices, the goods, and the social selves sustained and supported by that institution. Monte Neil Stewart, Judicial Redefinition of Marriage, 21 CAN. J. FAM. L. 11, 76-77 (2004) (footnotes omitted) (quoting Daniel Cere, The Conjugal Tradition in Postmodernity: The Closure of Public Discourse?, Paper Presented at Re-visioning Marriage in Postmodern Culture Conference, 4-5 (Dec. 2003)). The current debate over marriage is frequently portrayed as a decision about whether to expand or extend the boundaries of marriage to include same-sex couples. This argument rests on the assumption that the basic nature of marriage will remain largely unchanged by granting marriage status to same-sex partnerships and that all this policy change would do is absorb same-sex partnerships within the boundaries of marriage and extend the benefits of marriage to a wider segment of society. Indeed, the very term same-sex marriage implies that same-sex couples in long-term committed relationships are already a type of marriage that should be appropriately recognized and labeled as such. But this understanding is flawed in that it fails to recognize how recognizing same-sex partnerships as marriages would signify a fundamental change in how marriage is collectively understood and the primary social purposes for which it exists. If marriage is redefined to mean the union of two people without regard to gender, it will lose its inherent focus on children. Such a change, to be sure, would 7
0051
afford a few more children in same-sex unions the opportunity to grow up in what the law would deem a married household. But the law would then teach that marriage is essentially an emotional union that has no inherent connection to procreation and family life. ROBERT GEORGE ET AL., WHAT IS MARRIAGE? MAN
AND WOMAN: A DEFENSE
7 (2012); see United States v. Windsor, 133 S. Ct. 2675,
2715, 2718 (2013) (Alito, J., dissenting) (citing GEORGE ET AL., supra). In a formal
statement, seventy prominent academics from all relevant disciplines expressed deep[ ] concerns about the institutional consequences of same-sex marriage for marriage itself, concluding that [s]ame-sex marriage would further undercut the idea that procreation is intrinsically connected to marriage and undermine the idea that children need both a mother and a father, further weakening the societal norm that men should take responsibility for the children they beget. WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD: TEN PRINCIPLES 1819 (2006). Defining marriage as merely the union of two persons, in short, would distill[] marriage down to its pure close relationship essence. Cere, supra, at 2. Courts and jurists have likewise acknowledged the profound change in social meaning that would follow a change in marriages basic definition: We cannot escape the reality that the shared societal meaning of marriagepassed down through the common law into our statutory lawhas always been the union of a man and a woman. To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin. 8
0052
Lewis v. Harris, 908 A.2d 196, 222 (N.J. 2006); see also Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 981 (Mass. 2003) (Sosman, J., dissenting) ([I]t is surely pertinent to the inquiry to recognize that this proffered change affects not just a load-bearing wall of our social structure but the very cornerstone of that structure.). II. Recent Legal Changes to the Institution of Marriage and to MarriageRelated Expectations Confirm that Altering the Meaning of Marriage Would Likely Have Unintended and Negative Consequences for Children. The conclusion that redefining marriage will materially alter the mix of social benefits marriage provides is supported not only by sound socio-institutional theory, logic, and common sense but by experience with other changes to marriage and marriage-related expectations. Of course, no one can know the precise, longterm consequences of redefining marriage to include same-sex couples. It is
simply too soon and the ways it may affect marriage too complex to be understood without considerably more time and extensive conceptual and empirical inquiry. Justice Alito recently made this point: Past changes in the understanding of marriage . . . have had farreaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time. We can expect something similar to take place if same-sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come. Windsor, 133 S. Ct. at 2715 (Alito, J., dissenting); see also id. at 2715 n.5 (As 9
0053
sociologists have documented, it sometimes takes decades to document the effects of social changeslike the sharp rise in divorce rates following the advent of nofault divorceon children and society. (citing JUDITH S. WALLERSTEIN
ET AL.,
THE UNEXPECTED LEGACY OF DIVORCE: THE 25 YEAR LANDMARK STUDY (2000)). But cautionary lessons can be drawn from recent changes to marriage law and marriage-related expectations. Perhaps the most relevant lesson comes from an analysis of the impact of no-fault divorce. No-fault divorce had unintended consequences that weakened marriage and fatherhood, and thus harmed children, id. at 297; ALLEN M. PARKMAN, GOOD INTENTIONS GONE AWRY: NO-FAULT DIVORCE AND THE AMERICAN FAMILY 91-150 (2000), and is a likely template for the effects of same-sex marriage. There are many important reasons for no-fault divorce laws. The fault-based systems of the past undoubtedly created many problems and at times serious injustices. Among its benefits, no-fault divorce affords adults greater autonomy, WALLERSTEIN
ET AL.,
supra, at 297, and facilitates the end of dangerous, Betsey
Stevenson & Justin Wolfers, Bargaining in the Shadow of the Law: Divorce Law and Family Distress, 121 Q.J. ECON. 267, 267 (2006), unhealthy, or necrotic unions. Reformers were optimistic that no-fault divorce would have no detrimental effects on children. In fact, as Barbara Dafoe Whitehead has chronicled, many 10
0054
early experts provided extensive and intricate rationales for how divorce would benefit childrendivorce for the sake of the children. BARARA DAFOE
TO
WHITEHEAD, THE DIVORCE CULTURE: RETHINKING OUR COMMITMENTS
MARRIAGE AND FAMILY 81 (1996); see also id. at 84-90 (discussing predictions of how divorce would benefit children). Empirically, however, this early optimism has proven short-sighted. See Donald Moir, A New Class of Disadvantaged
Children, in IT TAKES TWO: THE FAMILY IN LAW AND FINANCE 63, 67-68 (Douglas W. Allen & John Richards eds., 1999). Reformers may have reasoned that
childrens exposure to harmful parental conflict would decrease and that their parents would readily find greater happiness that would improve parenting. But divorce often does not end parental conflict, E. MAVIS HETHERINGTON & JOHN KELLY, FOR BETTER OR FOR WORSE: DIVORCE RECONSIDERED 138 (2002), and the evidence suggests that parenting quality declines with divorce, id. at 126-140. Also, most divorces come from low-conflict marriages. PAUL R. AMATO & ALAN BOOTH, A GENERATION
AT
RISK: GROWING UP
IN AN
ERA
OF
FAMILY UPHEAVAL
220 (1997); Paul R. Amato & Bryndl Hohmann-Marriott, A Comparison of Highand Low-Distress Marriages That End in Divorce, 69 J. MARRIAGE & FAM. 261 (2007). And divorce does not lead reliably to greater personal happiness. LINDA J. WAITE ET AL., INSTITUTE FOR AM. VALUES, DOES DIVORCE MAKE PEOPLE HAPPY? FINDINGS FROM A STUDY OF UNHAPPY MARRIAGES 4 (2002). 11
0055
So as scholars acquired sufficient data to adequately assess the empirical realities of divorce, the evidence revealed decidedly less favorable outcomes, Paul R. Amato, The Impact of Family Formation Change on the Cognitive, Social, and Emotional Well-Being of the Next Generation, 15 FUTURE OF CHILDREN, Fall 2005, at 75, 75. It is true that the children of chronic, high-conflict marriages actually do better when that relationship ends, AMATO & BOOTH, supra, at 220, furthering societal interests in childrens well-being. But this is not the typical divorce scenario; as mentioned above, most divorces come from low-conflict marriages, and these children do worse when their parents divorce compared to children whose parents are able to sustain the marriage. Id. And most unhappy marriages become happy again if given time, Linda J. Waite et al., Marital Happiness and Marital Stability: Consequences for Psychological Well-Being, 38 SOC. SCI. RES. 201, 201 (2009) [hereinafter Waite, Marital Happiness], redounding to the further benefit of their children. Accordingly, the potential salutary benefits of no-fault divorce for one subset of children and parents have been greatly diminished by the harms it imposes on another and likely much larger subset of children and parents. A prolonged period of greater instability is a primary contributor to these harms. For most children (and adults), marital dissolution begins a prolonged process of residential and relational instability, as families move and new romantic interests 12
0056
move in and out of the household and many children lose contact with their fathers. ANDREW J. CHERLIN, THE MARRIAGE-GO-ROUND: THE STATE OF MARRIAGE
THE AND
FAMILY
IN
AMERICA TODAY 16-24 (2009) [hereinafter CHERLIN, MARRIAGE-
GO-ROUND].
While there is a long list of caveats, and while most children are
resilient, the fact remains that, on average, children whose parents divorce are at significantly greater risk for a host of economic, behavioral, educational, social, and psychological problems. Amato, supra, at 75. Moreover, the impact of no-fault divorce must also be assessed at the institutional level, not just the personal level. Scholars have debated the specific effects of no-fault divorce on subsequent divorce and marriage rates. It certainly contributed to a short-term increase in divorce in the 1970s, but evidence suggests it has also contributed modestly to increased divorce rates above its long-term historical trends. PARKMAN, supra, at 91 (summarizing research).
Psychologically, high rates of divorce have contributed greatly to a climate of marital fragility, which may be influencing current declines in our overall marriage rate as well as further increases in divorce rates. Judith Wallerstein concluded from her 25-year study of the effects of divorce that changes to family life, including the high incidence of divorce, have created new kinds of families in which relationships are fragile and often unreliable. WALLERSTEIN ET AL., supra, at 297. Nearly half of all marriages now end in divorce, Matthew D. Bramlett & 13
0057
William D. Mosher, CDC, First Marriage Dissolution, Divorce and Remarriage: United States, ADVANCE DATA NO. 323, at 5 (2001), making marriage seem like a risky proposition for all. This discourages some from entering into marriage at all, WALLERSTEIN ET AL., supra, at xvi, and keeps the specter of divorce ever-present during times of marital discontent. Research also has found a contagion effect for divorce, such that a divorce in ones social circle increases ones own risk of divorce. Rose McDermott et al., Breaking Up Is Hard to Do, Unless Everyone Else Is Doing It Too: Social Network Effects on Divorce in a Longitudinal Sample, 92 SOC. FORCES 491, 491 (2013). The advent of no-fault divorce (with accompanying shorter waiting periods) did not just make it procedurally easier to exit an unsatisfying relationship. It changed the legal and social presumption of permanence in marriage. Intentionally or not, no-fault divorce diminished the institutional and social expectation of marital permanence. It changed the public meaning of marriage from a legally binding life-long union that was expected to weather the inevitable
disappointments and challenges of romantic unions (for better or for worse), to a union whose duration depended on the subjective choice of one spousefrom as long as we both shall live has been replaced by as long as we both shall love. Before no-fault divorce, our laws reinforced the ideal that divorce should not be a ready option, although it may be a necessity. After no-fault divorce, our laws teach 14
0058
that divorce is always a ready option, even if not a necessity. The legal change of no-fault divorce has to some extent tipped the scales of marriage in favor of adult emotional interests and personal choice over its institutional, child-centered elements. It weakened permanence as a fundamental public meaning of marriage and contributed to a generational shift in attitudes and behaviors within individual marriages in ways that harmed overall child interests. Permanence was not just an element of the legal definition of marriage; it was a primary mechanism by which marriage produced its benefits for children (and adults). The expectation of permanence provides a strong incentive for parents to work through their problems to achieve a satisfying relationship; it encourages parents to prioritize their childrens long-term needs above their own short-term desires; it helps to harness two adults in the rearing of their children. Weakening the expectation of permanence in the legal and cultural understanding of marriage unexpectedly weakened each of these child-centered factors, on average harming the wellbeing of children. The no-fault divorce experience serves as a warning, especially with respect to child welfare. The definition of the institution of marriageits legal rules and norms and the social and personal meanings and expectations that flow from themaffects the behavior of all couples within marriage. And that in turn can have profound effects on the overall wellbeing of children, even if the immediate 15
0059
rationale of the change is to benefit a specific subset of children and adults. III. Redefining Marriage in Non-Gendered Terms Will Likely Harm the Interests of Children by Diminishing the Relevance and Value of Marriage and Fatherhood to Heterosexual Men. As with early advocates for no-fault divorce, proponents of eliminating the gendered definition and understanding of marriage confidently predict that such a change will have no adverse consequences for heterosexual marriages or their children. What could be the harm to marriage-related interests of allowing samesex couples to marry? Indeed, for the vast majority of people, the argument goes, nothing would change: If you like your marriage, you can keep your marriage. This recalls the optimistic early thinking about no-fault divorce. Yet some humility is in order. It is unlikely that contemporary thinkers attempting to divine the consequences of another major change to the legal definition of marriage the removal of gender as a defining pillarare more gifted at secular prophecy than were thinkers in the early years of the no-fault divorce revolution. Indeed, in our view, the no-fault divorce revolution provides the clearest precedent for rational predictions about the effects of redefining marriage in genderless terms. Just as the innovation of no-fault divorce benefited men and women in irretrievably broken marriages, same-sex couples may benefit from being able to marry and from the non-gendered understanding of marriage that such a redefinition would create. And it is reasonable to assumealthough it is hardly a
16
0060
certaintythat some existing children in same-sex couple households would also benefit from marriage if it brings greater stability to their family. But as the history of no-fault divorce suggests, there are strong reasons not to fully credit such predictions. And importantly, one has to look beyond the effects within same-sex families alone to accurately gauge the full impacts of a de-gendered understanding of marriage. Benign predictions about the effects of such a redefinition, moreover, are based on the assumption that legalizing same-sex marriage would not be a significant change in the core definition of marriage, or that, even if it is, such a change will have little or no adverse consequences on marriage as an institution and on those who depend on its current definition. But in fact, the legalization of same-sex marriage would eliminate gender as a definitional pillar of the social institution of marriage. That would not just expand or extend marriage to another class of relationships leaving unchanged the basic institution for its traditional members; it would effect a fundamental change in its meaning. And changing its meaning most likely will change behavior. To deny this likelihood is intellectually untenableit is to deny that meaning matters to social institutions, and that marriage matters as a social institution. How the new, de-gendered meaning of marriage will change attitudes toward and behaviors within marriage cannot be known with precision. But based 17
0061
on what is known about marriage as an institution and the roles it has long played in society, we can make some highly reasonable projections. We focus here on one in particular: that stripping marriage of its gendered meaning will likely diminish the relevance and meaning of marriage and fatherhood to heterosexual men, weakening their connection to marriage and to the children they father. A. Traditional, gendered marriage is the most important way heterosexual men create their masculine identities. Marriage forms and channels that masculinity into the service of their children and society. Redefining marriage to include same-sex couples would eliminate gender as a crucial element of marriage and thus undermine marriages power to shape and guide masculinity for those beneficial ends.
Far from being a relic of history or a quaint custom that has outgrown its usefulness in modern society, gender is a crucial component of not only the definition of marriage but of how marriage produces its benefits for children and society. In fact, it may be more crucial now than it has ever been because of changes that have occurred in the meaning of marriage over the past five decades that have dramatically weakened mens ties to their children and their childrens mother. Sara McLanahan, Diverging Destinies: How Children Are Faring Under The Second Demographic Transition, 41 DEMOGRAPHY 607, 607 (2004). According to eminent family sociologist Steven L. Nock, marriage is a primary means of shaping mens identities and behaviors (e.g., sexual, economic, etc.) from self-centered in nature to child- and family-centered in orientation:
18
0062
Historically, masculinity has implied three things about a man: he should be the father of his wifes children, he should be the provider for his wife and children, and he should protect his family. Accordingly, the male who refused to provide for or protect his family was not only a bad husband, he was somehow less of a man. In marriage, men do those things that are culturally accepted as basic elements of adult masculinity. . . . [M]arriage changes men because it is the venue in which adult masculinity is developed and sustained. STEVEN L. NOCK, MARRIAGE
IN
MENS LIVES 4 (1998). Moreover, Nock argues
that, by calling for behaviors of a certain type [socially valuable behaviors], the expectations of normative marriage also reinforce and maintain [generative] masculine identities. In this sense, normative marriage is a masculinity template. . . . In their marriages, and by their marriages, men define and display themselves as masculine. Id. at 58-59. When we ask why marriage appears to be beneficial to men [and women and children], one possible answer is that the institution of marriage, at least in its traditional form, is a socially approved mechanism for the expression of [mature] masculinity. Id. at 59. Marriage is the most important social mechanism we have to channel young mens adult identity into other-oriented behaviors of sacrifice, generosity, and protection for their own children and even for all children. Marriage is a
transformative act, but especially so for men, because of how it directs mens adult identity into service to their families and to society But fatherhood is more socially constructed and more contextually sensitive than motherhood, according to a landmark report to the U.S. Department of Health 19
0063
and Human Services, which was later published in a leading peer-reviewed journal. William J. Doherty et al., Responsible Fathering: An Overview and Conceptual Framework, 60 J. MARRIAGE & FAM. 277 (1998) [hereinafter Doherty, Responsible Fathering]. Fatherhood is more problematic than motherhood because mens
commitment to and investment in parenting is far more difficult to achieve. Many of the historical supports that have traditionally preserved mens involvement in their childrens lives have been eroding for contemporary families. Historically high rates of non-marital cohabitation, out-of-wedlock childbirth, and marital divorce, McLanahan, supra, have dramatically altered the landscape of fathering, leaving unprecedented numbers of children growing up with uncertain or nonexistent relationships with their fathers. While these demographic trends have changed family life in general, they have been particularly grim for father-child relationships, which are more sensitive than mother-child relationships to contextual forces and supports. Responsible Fathering, supra, at 277. Doherty,
Accordingly, any signal that mens
contributions are not central to childrens well-being threatens to further decrease the likelihood that they will channel their masculine identities into responsible fathering. We believe the official de-gendering of marriage sends just such a signal. A gender-free definition of marriage risks eliminating the achievement of mature, other-centered masculinity (as opposed to immature, self-centered 20
0064
masculinity) as a primary motivation for generative fathering. Thus, the legal recognition of same-sex marriage is not just an extension or expansion of marriages borders to accommodate a new kind of family form; it is a fundamental change to the meaning of marriage and fatherhood. In our opinion, to legally proclaim that gender is not an essential component of marriage undermines in a profound, far-reaching, and official way the very mechanism that creates many of the benefits that marriage produces. If marriage is redefined as two committed partners regardless of their gender, then marriages con nection to mens role as fathers is necessarily ambiguous. A genderless meaning of marriage puts at risk the cultural sense that marriage and fatherhood are central to defining mens identities. It invites, even demands, new ways of understanding families that make mens unique contributions to family life and their children entirely optional. It deepens the destructive, decades-long cultural trend of questioning the necessity and importance of fathers as nurturers, providers, and protectors within families, which has weakened father-child bonds and familial ties. In sum, if men are legally defined as optional to marriage and childrearing, then marriage will likely struggle to maintain its primacy as a means for men to establish their masculine identity in ways that serve children best. A gender-free definition of marriagewhere gender is officially irrelevant to its structure and meaningwill likely have less social power to draw heterosexual men into 21
0065
marriage and thus less power to serve marriages vital child-welfare purposes. And no doubt these potential effects, like many others, would be felt most keenly and quickly by the children and families of the most disadvantaged men in our societymen who already are struggling with a sense that they are of secondary importance within their families and whose masculinity is already challenged by their tenuous participation in our economic system. KATHRYN EDIN & TIMOTHY J. NELSON, DOING THE BEST I CAN: FATHERHOOD IN THE INNER CITY 216-28 (2013). To be sure, these risks associated with same-sex marriage may be difficult to disentangle from negative effects from other strong social changes. After all, we believe a de-gendered understanding of marriage is an additional force in a larger trend that is uncoupling sexuality, marriage, and parenthood and making mens connections to children weaker. Thus, it may be difficult to separate statistically the potential effects of de-gendering marriage from the effects stemming from powerful forces to which it is related, such as the sexual revolution, the divorce revolution, and the single-parenting revolution. That these effects are intertwined with the effects of other powerful forces, however, does not diminish their importance or the harms they can impose on marriage. Removing gender from the legal meaning of marriage will deepen the grand social experiment of the past 50 years of deinstitutionalizing marriage and fatherhood. Andrew Cherlin, The Deinstitutionalization of American Marriage, 66 22
0066
J. MARRIAGE FAM. 848, 848 (2004). And we fear its consequences will only add to the problems this change in family life is producing. B. Abandoning the gendered definition of marriage, thereby weakening the connection of heterosexual men to marriage and fatherhood, will harm the States interests in maximizing the welfare of children.
We have demonstrated how abandoning the gendered definition of marriage will tend to further alienate heterosexual men from marriage and fatherhood. Although precise effects cannot be known with certainty at this early stage, that alienation is likely to harm the States interests in securing the welfare of childrenand specifically in maximizing the likelihood that children will be reared by a father as well as a motherin at least four concrete and predicable ways. 1. Fewer and shorter marriages. Redefining marriage in genderless
terms will undermine the States interest in encouraging heterosexual fathers to marry the mothers of their children. If men no longer view marriage as central to defining their adult identitiesif they see themselves as unnecessary to the intrinsic meaning and purpose of marriage and thus view marriage as unrelated to their sense of malenessthey will be less likely to marry, even when they become fathers. Marriage, in other words, will simply be less relevant to men and thus less attractive to them. In an already highly individualistic culture such as ours, men will be more likely to seek to establish their adult identities through other means, 23
0067
such as career and financial success, personal pursuits, and leisure activities and non-marital sexual relationships. The children of such men will be far less likely to be raised by their fathers as well as their mothers, and as a result will suffer. See KRISTIN ANDERSON MOORE
ET AL.,
CHILD TRENDS, MARRIAGE
FROM A
CHILDS
PERSPECTIVE: HOW DOES FAMILY STRUCTURE AFFECT CHILDREN AND WHAT CAN WE DO ABOUT IT? 6 (June 2002), http://www.childtrends.org/files/Marriage RB602.pdf (children born and raised without a married father and mother suffer increased risks of poor outcomes). Redefinition will also undermine the States interest in encouraging married heterosexual fathers to remain married for the benefit of their children despite marital difficulties. Until the current generation, the widely held (and now
empirically supported) belief that children needed their fathers was a central tenet in social norms encouraging men to work through marital troubles with their wives . . . . Jason S. Carroll & David C. Dollahite, Whos My Daddy? How the Legalization of Same-Sex Partnerships Would Further the Rise of Ambiguous Fatherhood in America, in WHATS
THE
HARM?: DOES LEGALIZING SAME-SEX
MARRIAGE REALLY HARM INDIVIDUALS, FAMILIES OR SOCIETY 62 (Lynn D. Wardle ed., 2008). This retreat from the ideal may be particularly devastating for [the family involvement and parenting of] men who, according to research, are more reliant on such social and relationship supports to foster their healthy involvement 24
0068
in family life and parenting. Id. As we noted previously, research studies have found that most divorces come from low-conflict marriages and that the children in these families do worse when their parents divorce compared to children whose parents are able to sustain the marriage. AMATO & BOOTH, supra, at 220. Also, most unhappy marriages become happy again if given time, Waite, Marital Happiness, supra, at 201, rebounding to the further benefit of their children. A gendered definition of marriage and parenting emphasizes that fathers are important and unique in the lives of their children. This perspective helps men see that their children are stakeholders in their marriages and discourages divorce. Same-sex marriage denies that men are essential to marriage and thus that fathers are essential in the lives of their children, which will increase the likelihood that fewer heterosexual fathers stay married for the sake of their children. 2. Less parenting by fathers. Abandoning the gendered definition of
marriage will also diminish the likelihood of men, even married men, being responsible fathers, or being fathers at all. Indeed, it is likely that redefining marriage would support a retreat from fatherhood altogether among some American men. One aspect of a self-defined parenting ideology in society is the option of not being a parent at all. If fathering is not a cultural ideal, the potential exists for an increase in men who live outside marriage and parenthood altogether. Given the data on the negative social consequences of a large number of unmarried men (e.g., higher rates of crime and other anti-social behavior), we should resist movement toward a parenting culture that would suggest that 25
0069
men can be viewed as sperm donors whose only essential parenting role is conception and then women can do it alone, either as single parents or as a lesbian couple. The loss of a cultural ideal for men to become responsible fathers could lead to increased numbers of men and children who live in non-generative contexts. Carroll & Dollahite, supra, at 62-63. This would harm the States interest in encouraging the optimal mother-father, biological parenting model, resulting in more children being raised without the benefits of a biological fatheror any father at all. 3. More conception outside marriage rather than inside marriage. For
similar reasons, abandoning the gendered definition of marriage would make it more likely that men will engage in sex outside marriage, and will thus produce comparatively more children who will likely be raised by their mothers alone. For many men, the current cultural expectation that they will be active fathers to any children they help conceive serves as a natural deterrent to engaging in extramarital sex and thus risking the incursion of such an obligation. By weakening or removing that cultural expectationi.e., by making the fathers role optional redefining marriage in genderless terms will reduce that deterrent and, therefore, likely increase the relative number of children conceived and born outside of marriage, with no expectation that the father will be actively involved in rearing them. In short, redefinition will likely increase the proportion of fatherless
26
0070
children in two ways: by reducing the number of children born within marital unions, and by increasing the number born outside of such unions. Of course, current increases in non-marital childbirth rates reflect large increases in the number of cohabiting couples having children, which is increasingly being seen by many as another culturally viable form of family formation. And, if young mothers and fathers were actually marrying each other a year or two after the arrival of their first child and remaining together, non-marital childbirth rates might not be much to worry about. But that is not whats happening. Nearly 40 percent of cohabiting twenty-something parents who had a baby between 2000 and 2005 split up by the time their child was five three times the rate for twenty-something parents who were married when they had a child. Cohabiting parents were also more than three times more likely than married parents to move on to another cohabiting or marital relationship with a new partner if their relationship did break up. KAY HYMOWITZ, ET AL., KNOT YET: THE BENEFITS AND COSTS OF DELAYED MARRIAGE IN AMERICA (2013), available at http://nationalmarriageproject.org/wp-content/uploads/2013/03/KnotYetFinalForWeb.pdf. Research paints a sobering picture of the effect these
disruptions have. Children suffer emotionally, academically, and financially when they experience this type of relationship carousel. See CHERLIN, MARRIAGE-GOROUND, supra; Amato, supra. 27
0071
4.
Less self-sacrificing by fathers. Finally, further alienating men from
marriage and fatherhood by redefining it to make their presence unnecessary would likely diminish self-sacrificing behavior by men for their wives and children. If, as we show above, a genderless definition of marriage undermines marriage and fatherhood as a primary vehicle for adult identity-creation, then men will be less likely to sacrifice their self-interests for the child-centric interests inherent in traditional male-female marriage and fatherhood. When faced with choices
regarding career, housing and neighborhood decisions, long-term saving, child educational needs, personal recreational activities, activities with friends, sexual fidelity to spouse, alcohol and drug use, and a host of other decisions affecting the welfare of their children, fathers will be more likely to choose their own selfish interests over those of their wives and children. As child interests take a back seat, the welfare of children is likely to suffer in a host of ways. CONCLUSION This Court should not make the mistake of believing that redefining marriage to include same-sex couples is merely a matter of extending to such couples the benefits of marriage. Social institutions are constituted by legal and social meanings that shape and guide human behavior. Marriage, foremost among our social institutions, has profound connections with child welfare and adult male
28
0072
identity. Indeed, both are integrally related. We believe marriage cannot simply be redefined in non-gendered terms without significant consequences for children. Naturally, the risks associated with legalizing same-sex marriage may prove difficult to statistically disentangle from the negative effects of other strong social changes. In our view, a de-gendered understanding of marriage is an additional force in a larger trend that is uncoupling sexuality, marriage, and parenthood and making mens connections to children weaker. Thus, it may be difficult to
statistically separate the potential effects of de-gendering marriage from effects stemming from powerful forces to which it is related: the sexual revolution, the divorce revolution, and the single-parenting revolution. But the fact that degendering effects are intertwined with the effects of other powerful forces does not diminish their importance. Much as no-fault divorce changed the presumed permanence of marriage, creating unexpectedly adverse consequences for children, abandoning the gendered definition of marriage threatens to further destabilize marriage as a key definer and shaper of mature male identity. This, in turn, is likely to further alienate men from marriage, resulting in harm to marriages vital role in advancing child welfare and particularly in maximizing the likelihood that children, as much as possible, will be reared by a father as well as a mother. While the precise effects of
29
0073
redefining marriage cannot be known with statistical certainty, these risks are real and cannot be ignored. For these reasons, we urge the Court to reject arguments advocating the judicial redefinition of marriage and reverse the district courts below.
Dated: February 10, 2014 s/ Lynn D. Wardle Lynn D. Wardle, Esq. Brigham Young University Law School Room 518 Provo, UT 84602 Telephone: (801) 422-2617 wardlel@law.byu.edu Attorney for Professors Hawkins and Carroll
30
0074
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) Certificate of Compliance With Type-Volume Limitation, Typeface Requirements, and Type Style Requirements. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,874 words, excluding parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. Civ. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Word 2007 in 14-point Times New Roman. Dated: February 10, 2014 s/ Lynn D. Wardle Lynn D. Wardle, Esq. Brigham Young University Law School Room 518 Provo, UT 84602 Telephone: (801) 422-2617 wardlel@law.byu.edu
31
0075
CERTIFICATE OF SERVICE I hereby certify that on February 10, 2014, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Tenth Circuit by using the appellate CM/ECF system, which will send notification of such filing to the following: Case No. 13-4178: David C. Codell dcodell@nclrights.org Kathryn Kendell kkendell@nclrights.org Shannon Price Minter SMinter@nclrights.org James E. Magleby magleby@mgpclaw.com Jennifer Fraser Parrish parrish@mgpclaw.com Peggy Ann Tomsic tomsic@mgpclaw.com Attorneys for Plaintiffs-Appellees John J. Bursch jbursch@wnj.com Philip S. Lott phillott@utah.gov Stanford E. Purser spurser@utah.gov Gene C. Schaerr gschaerr@gmail.com Monte Neil Stewart stewart@stm-law.com Attorneys for Defendants-Appellants
Ralph E. Chamness rchamness@slco.org Darcy Marie Goddard dgoddard@slco.org Attorneys for Defendant Swensen
32
0076
Case Nos. 14-5003, 14-5006: Don Gardner Holladay dholladay@holladaychilton.com James Edward Warner, III jwarner@holladaychilton.com Joseph Thai thai@post.harvard.edu Attorneys for Cross-Appellant Byron Jeffords Babione bbabione@alliancedefendingfreedom.org James Andrew Campbell jcampbell@alliancedefendingfreedom.org David Austin Robert Nimocks animocks@alliancedefendingfreedom.org
Plaintiffs-Appellees/ John David Luton jluton@tulsacounty.org Attorneys for Cross-Appellee Defendant-Appellant/
W. Scott Simpson scott.simpson@usdoj.gov Attorney for Defendant
Kerry W. Kircher kerry.kircher@mail.house.gov Attorney for Defendant-Intervenor
Dated: February 10, 2014 s/ Lynn D. Wardle Lynn D. Wardle, Esq. Brigham Young University Law School Room 518 Provo, UT 84602 Telephone: (801) 422-2617 wardlel@law.byu.edu
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CERTIFICATE OF DIGITAL SUBMISSION I hereby certify that with respect to the foregoing: (1) all required privacy redactions have been made per 10th Cir. R. 25.5; (2) if required to file additional hard copies, the ECF submission is an exact copy of those documents; (3) the digital submissions have been scanned for viruses with the most recent version of a commercial virus scanning program, Sophos, Version 10.3, last updated on February 10, 2014, and according to the program are free of viruses. Dated: February 10, 2014 s/ Lynn D. Wardle Lynn D. Wardle, Esq. Brigham Young University Law School Room 518 Provo, UT 84602 Telephone: (801) 422-2617 wardlel@law.byu.edu
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TAB 3
A Report from the Council on Family Law Dan Cere, Principal Investigator
The Future of Family Law Law and the Marriage Crisis in North America
Institute for American Values Institute for Marriage and Public Policy Institute for the Study of Marriage, Law and Culture
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The Council on Family Law, chaired by Mary Ann Glendon of Harvard Law School, is an interdisciplinary group of scholars and leaders who have come together to analyze the purposes and current directions of family law in Canada and the United States and to make recommendations for the future. The Council is independent and nonpartisan. It is jointly sponsored by the Institute for American Values, the Institute for Marriage and Public Policy, and the Institute for the Study of Marriage, Law and Culture. This Reports Principal Investigator, Dan Cere, teaches ethics at McGill University in Montreal and directs the Institute for the Study of Marriage, Law and Culture. The Council is grateful to the Achelis and Bodman Foundations, the William H. Donner Foundation, the JM Foundation, the Maclellan Foundation, Arthur and Joann Rasmussen, and the William E. Simon Foundation for their generous financial support. The research, editorial, and administrative contributions of Sara Butler and Elizabeth Marquardt are also deeply appreciated.
On the cover: Rejected Copy by Larry Rivers Estate of Larry Rivers/Licensed by VAGA, New York, NY. Layout by Josephine Tramontano.
2005, Institute for American Values. No reproduction of the materials contained herein is permitted without the written permission of the Institute for American Values. ISBN #978-1-931764-08-5 For more information or additional copies, contact: Institute for American Values 1841 Broadway, Suite 211 New York, NY 10023 Tel: (212) 246-3942 Fax: (212) 541-6665 Email: info@americanvalues.org Web: www.americanvalues.org
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Table of Contents
Members of the Council on Family Law............................................................................... Executive Summary...............................................................................................................
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Introduction: The Marriage and Family Law Crisis............................................................... 9 How Does Family Law Matter?.................................................................................. 10 The Veil of Incrementalism........................................................................................ 11 Marriage Law in the New World of Close Relationships................................................... Marriage: The Conjugal View.................................................................................... Marriage: The Close Relationship Model.................................................................. Two Case Studies....................................................................................................... The American Law Institute Report: Principles of the Law of Family Dissolution...... Beyond Conjugality: The View from Canada............................................................ Critiquing these Reports: Whats Left Out?................................................................ The Future of Family Law: Four Possible Directions............................................................ 1. Equivalence Between Cohabitation and Marriage................................................ 2. Redefining Marriage as a Couple-Centered Bond................................................. 3. Disestablishment, or the Separation of Marriage and State.................................. 4. Why Just Two?........................................................................................................ 12 12 14 16 16 18 20 21 21 25 27 31
Parenthood: The Next Legal Frontier.................................................................................... 33 Fragmenting Parenthood........................................................................................... 37 Conclusion............................................................................................................................. 40 Recommendations................................................................................................................. 42 Endnotes................................................................................................................................ 43
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Members of the Council on Family Law Iain T. Benson, Centre for Cultural Renewal David Blankenhorn, Institute for American Values Margaret Brinig, University of Iowa College of Law Don S. Browning, University of Chicago Divinity School, Emeritus Ernesto Caparros, University of Ottawa Faculty of Law, Emeritus Dan Cere, McGill University (Principal Investigator) Maura D. Corrigan, Chief Justice, Michigan Supreme Court John Crouch, Americans for Divorce Reform Maggie Gallagher, Institute for Marriage and Public Policy Mary Ann Glendon, Harvard Law School (Council Chair) Christopher B. Gray, Concordia University Thomas C. Kohler, Boston College Law School John E. Murray, Jr., Duquesne University School of Law David Novak, University of Toronto David Popenoe, Rutgers University, National Marriage Project T. Peter Pound, Centre for Cultural Renewal Leah Ward Sears, Presiding Justice, Supreme Court of Georgia Carl E. Schneider, University of Michigan Law School Katherine Shaw Spaht, Louisiana State University Law Center Lynn D. Wardle, Brigham Young University Law School Robin Fretwell Wilson, University of Maryland School of Law
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The Future of Family Law
Law and the Marriage Crisis in North America
Executive Summary
FAMILY LAW IS on the front pages of our newspapers and is implicated in some of our deepest cultural conflicts, from no-fault divorce, to the status of cohabitation to, most recently, same-sex marriage. At their core, these ongoing disputes are fueled by competing visions of marriage and of the role of the state in making family law. This report on the current state of family law holds up for clear public view the underlying, dramatically different models of marriage that are contributing to deep public clashes over the law of marriage, cohabitation, and parenthood. Obtaining conceptual clarity about marriage and its meanings will allow family law experts, scholars from other disciplines, judges, legislators, and the general public to make more informed choices among competing legal proposals now being advanced in the United States and Canada.
Two Recent Reports
Recently two highly influential reports have been published by legal scholars, one in the United States and one in Canada. Both reports are deeply influenced by a new vision of marriage. Both reports have potentially profound and far-reaching consequences for social attitudes and practices concerning marriage, parenthood, and children. The first report is the Principles of the Law of Family Dissolution, published in 2002 by the American Law Institute (ALI). This report moves away from the idea that there can be public standards guiding marriage and parenthood. Instead, it says that the central purpose of family law should be to protect and promote family diversity. The report sidelines what it calls traditional marriage, viewing marriage as merely one of many possible and equally valid family forms. In the process the report denies the central place of biological parenthood in family law and focuses instead on the newer idea of functional parenthood. The second report is Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships, published in 2001 by the Law Commission
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of Canada. This report proposes a fundamental reconstitution of contemporary family law. It argues that the law must go beyond conjugality and focus on the substance of relationships rather than giving legal recognition to any specific arrangements such as marriage. It recommends that the traditional conjugal idea of marriage be put on a level playing field with all other kinds of relationships. It also argues for redefinition of marriage and its extension to same-sex couples.
The Current Directions of Family Law
These recent reports indicate that family law is headed in one or more of at least four troubling directions. Some of these changes have already been implemented in some jurisdictions in the United States and Canada. 1. Equivalence Between Cohabitation and Marriage Many now argue that marriage and cohabitation should be treated equally under the law. This approach denies that some couples might intentionally choose not to marry. Most dramatically, it would have the law treat two institutions similarly when social science data show that, when it comes to the well-being of children, cohabitation is on average much less stable and safe. 2. Redefining Marriage as a Couple-Centered Bond In order to accommodate same-sex couples, this approach redefines marriage as a gender-neutral union of two persons. By doing so it neutralizes the laws ability to say that children need their mothers and fathers and reifies a new conception of marriage that is centered on the couple rather than children. 3. Disestablishment, or the Separation of Marriage and State Given serious and seemingly irresolvable cultural and political clashes between competing visions of marriage, increasing numbers of advocates on the left and the right are calling for disestablishment of marriage, or getting the state out of the marriage business. This approach denies the states legitimate and serious interest in marriage as our most important child-protecting social institution and as an institution that helps protect and sustain liberal democracy. 4. Why Just Two? The gendered definition of marriage has already met serious challenges (and been defeated) in some U.S. and Canadian courts. Challenges to the two-person definition of marriage are only a matter of time. Legal scholars are now publishing articles that make this case.
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Children: The Missing Piece
What is missing in new proposals in family law is any real understanding of the central role of marriage as a social institution in protecting the well-being of children. Marriage organizes and helps to secure the basic birthright of children, when possible, to know and be raised by their own mother and father. It attempts to forge a strong connection between men and women and the children resulting from their bonds. These new marriage proposals call for a fundamental reevaluation of the relationships between children and their parents. These new reports make clear that eliminating the notion of biology as the basis of parenthood, and allowing parenthood to fragment into its plural and varied forms, is necessary if courts are to make family diversity a legal and cultural reality. The vision outlined in these two reports frees adults to live as they choose. But social science data strongly suggest that not all adult constructions of parenthood are equally child-friendly. Further fragmentation of parenthood means further fragmented lives for a new generation of children who will be jostled around by increasingly complex adult claims. This vision also requires more systematic intrusion into the family and adjudication of its internal life by the state and its courts.
Clashing Models of Marriage
What are the competing models of marriage that are at odds in todays family law debates? 1. The Conjugal View The model of marriage broadly reflected in law and culture until quite recently can be called the conjugal model. Marriage in this view is a sexual union of husband and wife who promise each other sexual fidelity, mutual caretaking, and the joint parenting of any children they may have. Conjugal marriage is fundamentally child-centered. Theorists of liberal democracy from John Locke to John Rawls have underlined the important, generative work that conjugal marriage does for society. This normative model of marriage is under attack in these recent reports. 2. The Close Relationship Model This competing vision of marriage has emerged in recent decades. In it, marriage is a private relationship between two people created primarily to satisfy the needs of adults. If children arise from the union, so be it, but marriage and children are not seen as intrinsically connected.
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This second and newer vision has been fueled by a new discipline called close relationship theory. For close relationship theorists, marriage is simply one kind of close personal relationship. The structures of the discipline tend to strip marriage of the features that reflect its importance as a social institution. Marriage is examined primarily as a relationship created by the couple for the satisfaction of the two individuals who enter into it. This view of marriage radically sidelines the main feature that makes marriage unique and important as a social institution that is, the attempt to bridge sex difference and struggle with the generative power of opposite-sex unions, including the reality that children often arise (intentionally and not) from heterosexual unions. Todays close relationship theorists argue that conjugal marriage can no longer serve as a useful focus for scholarly research on closely bonded human relationships. They argue that the traditional marriage-and-family paradigm imposes an ethnocentric benchmark or ideal. This paradigm, they say, does not speak to the experience of racial minorities, women, single parents, divorced and remarried persons, gays and lesbians, and others. Their perspective is finding a new and powerful voice in todays family law proposals.
Conclusion
Family law today appears to be embracing a big new idea. The idea is that marriage is only a close personal relationship between adults, and no longer a prochild social institution. This idea is fundamentally flawed. It will hurt children and weaken our civil society. For this reason, there is an urgent need for those outside the legal discipline to understand and critique the new understandings of marriage and family life that are driving current legal trends. Marriage and family are too important as institutions, affecting too many people, for basic decisions about their legal underpinnings to remain the province of legal experts alone. If the proposed changes are put in place, there are likely to be important negative impacts on the lives of everyday people. A close relationships culture fails to acknowledge fundamental facets of human life: the fact of sexual difference; the enormous tide of heterosexual desire in human life; the procreativity of male-female bonding; the unique social ecology of parenting which offers children bonds with their biological parents; and the rich genealogical nature of family ties and the web of intergenerational supports for family members that they provide. These core dimensions of conjugal life are not small issues. Yet at this crucial moment for marriage and parenthood in North America, there is no serious intellectual platform from which to launch a meaningful discussion about these elemental features of human existence. This report on the state of family law seeks to open that debate.
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Introduction: The Marriage and Family Law Crisis FAMILY LAW IS HOT. It is on the front pages of our newspapers and is implicated in some of our deepest cultural conflicts, from no-fault divorce to the status of cohabitation to, most recently, same-sex marriage. Family law now operates in a global context with legal scholars in one nation often influencing their peers elsewhere. Because marriage and the family are pervasive social institutions, The ongoing disputes in touching the lives of all citizens, changes in family law can family law are centrally generate unusually intense social discomfort. John Dewar, the dean of law at Griffith University in Australia, puts it this way: about competing visions
There are few areas of law that generate as much controversy and disagreement as family law. Its something potentially that affects us all, in which we all feel we have a stake and of which some of us have had direct experience. Indeed, there are probably few areas of law that affect so many people so directly in their everyday lives.1
of marriage.
Legal theory about the family, he notes, has become a confused and tangled terrain of conflicting ideas and tendencies.2 The purpose of this report is to bring conceptual clarity into the confused and tangled terrain of the family law debate. Here is our central thesis: the ongoing disputes in family law are centrally about competing visions of marriage. While at the far ends of a conceptual divide lie a bewildering variety of specific new proposals (same-sex marriage, covenant marriage, de facto parenting, cohabitation, constitutional amendments to define marriage, and more) these disputes begin with and are fueled by dramatically different concepts of marriage and of the role of the state in making family law. The competing visions of marriage and family contained in family law are important. Because marriage is a public, legal status, the states vision of marriage has unusual social power. In regulating marriage, the state not only defines the rights of individuals and couples but also can and does command other institutions of civil society (corporations, faith communities, and even private individuals) to treat married couples differently because they are married. Yet the meanings of marriage at stake in these debates are often not very clear. In part, as we shall see, this lack of clarity stems from the fact that the laws characteristic method, incrementalism, tends to obscure ultimate consequences. In part it is because the social meanings of the word marriage, and the underlying reality it denotes, are in play in our society as they have seldom been before. The competing visions of marriage at the heart of the family law debate are deeply incompatible the adoption of one model of marriage moves us in a very different
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direction than its alternative. But unless the conceptual issues at stake are clarified, this problem is not obvious to most observers, in part because most of us in North America today have been influenced in our marriage dreams by both of these visions of marriage. Further, the stakes in the family law debates have been left unclear because some champions of this new marriage model appear to be reluctant for tactical reasons to explain the ultimate consequences of adopting their proposals, while many advocates of our marriage traditions have been less than articulate about what it is they seek to uphold or why the legal understanding of marriage matters. Rights talk can obscure as much as it reveals. In particular, the portrayal of certain legal reforms as advancing state neutrality between the moral positions of individuals, or as increasing individual liberty in a straightforward way, obscures the reality of what is being proposed: a new substantive model of marriage endorsed and promoted by law. The shift to unilateral divorce, for example, does not merely make the state more neutral regarding divorce, nor does it merely increase individual liberty. Unilateral divorce, as a legal institution, increases the freedom of individuals to divorce by reducing their capacity to make enforceable marriage contracts with each other; it shifts legal power in divorce negotiations from the spouse who clings to the marriage vow to the spouse who wishes to end it. Some of us may view changes such as unilateral divorce as necessary accommodations to social change. Some of us may view them negatively, and as ripe for reform. But we all must recognize that such changes are not neutral or merely freedom-enhancing. They are powerful interventions by government into a key social institution and thus worthy of sustained and intelligent public debate. A major goal of this essay is to hold up for clear public view these underlying, competing models of marriage that are contributing to deep public clashes over the law of marriage, cohabitation, and parenthood. We hope that obtaining conceptual clarity about marriage and its meanings will allow family law experts, scholars, judges, legislators, and the general public to make more informed choices among competing legal proposals.
How Does Family Law Matter?
Laws do more than distribute rights, responsibilities, and punishments. Laws help to shape the public meanings of important institutions, including marriage and family. The best interdisciplinary studies of institutions conclude that social institutions are shaped and constituted by their shared public meanings. According to Nobel Prize winner Douglass North, institutions perform three unique tasks. They establish public norms or rules of the game that frame a particular domain of human life. They broadcast these shared meanings to society. Finally, they shape social conduct and relationships through these authoritative norms.3
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The courts today have become major sites for reconstructing the public meanings of family, marriage, permanence, and parenthood. Legal theorists of diverse ideological stances acknowledge the impact of family law on marriage and family life. Harry Krause argues that the law has deeply affected (and helped to affect) family behavior over time. Moreover, is it not the role of law to help shape and channel our future in this most important playground of human existence?4 Another legal scholar argues: There is no part of modern life to which law does not extend. The rule of law shapes our Family law is experience of meaning everywhere and at all times. It is not reconstructing the public alone in shaping meaning, but it is rarely absent.5 The Chief Justice of the Supreme Court of Canada concurs: The rule of meanings of marriage and law exerts an authoritative claim upon all aspects of selfhood parenthood. and experience in a liberal democratic society. Some such claims are made by the institutional structures of the law. Others are ancillary claims arising from a diffused ethos of legal rule that influences local, community, and familial structures.6 William Eskridge, a Yale law professor and a prominent architect of same-sex marriage strategy, argues that law cannot liberalize unless public opinion moves, but public attitudes can be influenced by changes in the law.7 Feminist legal theorist Martha Fineman, who urges the abolition of marriage as a legal category, says that institutions such as the family are actually created and constituted as coherent institutions through law. Their very existence as objects of state regulatory concern comes into being through law. State policies can profoundly affect the form and functioning of the family.8
The Veil of Incrementalism
Yet to the layperson, the family law debate is often highly confusing, in part because of the laws characteristic language and method of incrementalism. Legal theorists in the ivory tower may tout broad, sweeping changes, but quite often these changes are enacted by courts incrementally, through individual cases and the reshaping of discreet legal categories. There is nothing nefarious or inappropriate about incrementalism as a legal method. But in the current family law context, this legal process can obscure deep and lasting changes that end up shaping peoples everyday lives in unexpected ways. Make no mistake: incremental changes do not mean unimportant changes. William Eskridge explains the tactical advantages of advocating only incremental changes to the law. Though he supports same-sex marriage, for strategic reasons, he advises against any direct push for legal redefinition of marriage.9 He writes that a main benefit of incrementalism is that it leaves resulting changes largely immune from direct public criticism and debate.10 He points to Holland and other European
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countries which, in a fairly short amount of time, have ushered in a variety of statesanctioned relationships that now compete with marriage. According to Eskridge, these equality practices help to denormalize marriage.11 Marriage and family are too important as social institutions, affecting too many people, especially children, for basic decisions about their legal underpinnings to remain the private province of legal experts alone. There is an urgent need for the involvement of disciplines besides the law to identify, understand, and critique the legal theories of marriage and family life that are helping to shape new trends.
Marriage Law in the New World of Close Relationships WHAT ARE THE models of marriage now in play in family law in North America?
Marriage: The Conjugal View
The model of marriage broadly reflected in law and culture until quite recently can be called the conjugal model. Marriage in this view is a sexual union of husband and wife, who promise each other sexual fidelity, mutual caretaking, and the joint parenting of any children they may have. In essence, conjugality refers to the sexbridging, procreative dimension of marriage. Conjugal marriage has several characteristics. First, it is inherently normative. Conjugal marriage cannot celebrate an infinite array of sexual or intimate choices as equally desirable or valid. Instead, its very purpose lies in channeling the erotic and interpersonal impulses between men and women in a particular direction: one in which men and women commit to each other and to the children that their sexual unions commonly (and even at times unexpectedly) produce. As an institution, conjugal marriage addresses the social problem that men and women are sexually attracted to each other and that, without any outside guidance or social norms, these intense attractions can cause immense personal and social damage. This mutual attraction is inherently linked to the reproductive labor that is essential to the intergenerational life of all societies, including modern liberal societies.12 The default position for men and women attracted to the opposite sex, absent strong social norms, is too many children born without fathers, too many men abandoning the mothers of their children, and too many women left alone to care for their offspring. If law and culture choose to do nothing about sexual attraction between men and women, the passive, unregulated heterosexual reality is multiple failed relationships and millions of fatherless children. Marriage, like the economy, is one of the basic institutions of civil society. It provides an evolving form of life that helps men and women negotiate the sex divide, forge an intimate community of life, and provide a stable social setting for
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their children. The seminal theorists of liberal democracy from John Locke to John Rawls have always underlined the generative work of this conjugal form of life. John Lockes The Second Treatise on Government underlines the core social purpose of marriage for a liberal polity.13 John Rawls argues that the family as a basic institution is geared to the orderly production and reproduction of society and of its culture from one generation to the next.14 From this basic human reality arises the need for the wider society to direct immense energy into helping manage the Conjugal marriage reality of individual mens and womens desire for sex and fundamentally intimacy in ways that ultimately protect them, their children, and the interests of the community. As a highly visible social child-centered. and legal institution, marriage provides both the structure and the hope men and women need, so that such a resolution of male and female sexual interests is not only possible but attainable. As we shall see, this normative function of marriage is the one that is most directly under attack by the authors of the American Law Institute report. Another characteristic of conjugal marriage is that it is fundamentally childcentered, focused beyond the couple towards the next generation. Not every married couple has or wants children. But at its core marriage has always had something to do with societies recognition of the fundamental importance of the sexual ecology of human life: humanity is male and female, men and women often have sex, babies often result, and those babies, on average, seem to do better when their mother and father cooperate in their care. Conjugal marriage attempts to sustain enduring bonds between women and men in order to give a baby its mother and father, to bond them to one another and to the baby.15 A great deal of social science evidence now confirms the traditional understanding of the law. Children do better, on average, when raised by their own mother and father in a harmonious relationship. A Child Trends research brief summed up the new scholarly consensus:
Research clearly demonstrates that family structure matters for children, and the family structure that helps the most is a family headed by two biological parents in a low-conflict marriage. Children in single-parent families, children born to unmarried mothers, and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes.... There is thus value for children in promoting strong, stable marriages between biological parents.16
is
Of course, marriage always has and still does many other important things. It protects and supports the man and woman as they grow older and provides sexual pleasure and comfort even when children do not result. It also helps to organize property, inheritance, and more. But the core insight fueling the conjugal view of
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marriage is this one: if human beings did not reproduce sexually, creating human infants with their long period of dependency, marriage would not be the virtually universal human social institution that it is.17
Marriage: The Close Relationship Model
In recent decades, however, a competing vision of marriage has emerged. In this new view, marriage is seen primarily as a private relationship between two people, the primary purpose of which is to satisfy the adults who enter it. Marriage is about the couple. If children arise from the union, that may be nice, but marriage and children are not really connected.18 In a moment we shall see how the close relationship model has begun to dominate family law. To understand the features of this new model of marriage most clearly, the place to start is with its contemporary theoreticians, who are primarily psychologists and, to a lesser extent, sociologists. As a discipline, close relationship theory emerged prominently in the 1980s, spearheaded by a diverse group of scholars and academic associations, such as the International Society for the Study of Personal Relationships and the International Network on Personal Relationships. This new disciplinary framework now has two major journals The Journal of Social and Personal Relationships (1984-) and Personal Relationships (1994-) as well as a number of major publication series, including the Sage Series on Close Relationships and Advances in Personal Relationships.19 Close relationship theory focuses primarily on the nature of relationships between two people (or what is called dyadic relationships). For close relationship theorists, marriage becomes a subcategory of this core concept; marriage is simply one kind of close personal relationship. The structures of the discipline tend to strip marriage of the features that reflect its status and importance as a social institution. Marriage is examined primarily as a relationship created by the couple for the satisfaction of the two individuals who are in it. Of course close relationship theorists are not operating in a vacuum. Close relationship theory reflects real trends in society that are making marriage less connected to its classic purposes as a social institution. For example, while marriage remains a wealth-generating institution,20 other institutions of society (such as the market and government) have taken over large parts of the economic and social insurance functions marriage once had. While marriage remains a socially preferred context for sexual intercourse, the sexual revolution (including the growth in social acceptance for couples living together) has reduced the stigma for those who have sex outside of marriage. While marriage continues to have considerable connection to children in the public mind, large increases in unmarried childbearing have increased social acceptance of unwed parents and their children. In addition, high
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rates of divorce and the personal longings for a soul mate are changing the way young people think about marriage.21 Anthony Giddens, probably Britains most distinguished sociologist, writes that the close relationships approach to human sociality is reconfiguring popular as well as academic culture, bringing about a new grammar of intimacy. He believes that we are moving from a marriage culture to a culture that celebrates pure relationship.22 A pure relationship is one that has been stripped of any goal beyond the intrinsic emotional, psychoIn the new view, marriage logical, or sexual satisfaction which the relationship currently is to satisfy adult needs. brings to the individuals involved. As an academic field, close relationship theory insists on Marriage and children bringing a common theoretical and methodological approach are not connected. to the study of all sexually based primary relationships.23 Similar values and processes are said to govern the initiation, maintenance, and dissolution dynamics of all close relationships. The existence (or lack) of a legally recognized bond such as marriage is a secondary consideration. In one sense, there is nothing particularly novel about the idea of marriage as a close personal relationship. Classical Western perspectives on marriage have always stressed that marriage must be grounded in committed friendship. Close relationship theory can help us to understand this dimension of marriage. But it is also clear that once marriage is viewed as just another dyadic relationship, the distinctive features grounding the conjugal understanding of marriage are simply edited out of the discourse.24 That which is distinctive about marriage is not allowed to enter the discussion.25 What gets left out? The answer is the main feature that makes marriage unique the attempt to bridge sex difference and the struggle with the generative power of opposite-sex unions. Conjugal marriage attempts to confront the fact that heterosexual sex acts can and often do produce children. This reality raises a set of concerns of critical importance to children, couples, and the species concerns that close relationship theory is not prepared to take on. Instead, many close relationship theorists maintain that what was once called the nuclear conjugal family can no longer serve as a useful focus for research on closely bonded human relationships.26 They argue that viewing sexual and procreative life through the lens of conjugal marriage constitutes an external, ideological perspective that distorts objective analysis. The traditional marriage-and-family paradigm imposes an ethnocentric benchmark or ideal. This paradigm, they say, does not speak to the experience of racial minorities, women, single parents, divorced and remarried persons, gays and lesbians, and others.27 In the late 1980s, leading close relationship theorists recommended that legal theorists expand their thinking about sexually bonded intimacy beyond the confines of the family to include all close relationships.28 And so, as we shall see, they have.
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Two Case Studies: The American Law Institutes Principles of the Law of Family Dissolution and the Law Commission of Canadas Beyond Conjugality
The clearest evidence of the intellectual dominance of the close relationship model of marriage in family law discourse can be found in two highly influential law reports, published within a short time of each other, one in the United States and one in Canada.29 The first report is the Principles of the Law of Family Dissolution, published in 2002 by the American Law Institute (ALI). The ALI usually publishes what it calls restatements of the law. These influential reports are used by academics, attorneys, and judges to help make sense of laws that may not have been decided yet by a states own case law, and courts will sometimes adopt their restatements. It is rare for the ALI to take on family law and rarer still for them to suggest changes to existing law as they have in the Principles of the Law of Family Dissolution rather than simply restating the law.30 The second report is Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships, published in 2001 by the influential Law Commission of Canada. The Law Commission of Canada is appointed by the Canadian federal government as an independent federal law reform agency that advises Parliament on how to improve and modernize Canadas laws. Both reports come from legal organizations that have shaped the development of laws in their respective nations in the past. These two new reports are a good vantage point from which to analyze and view the direction of conventional legal thought on marriage and family law in North America. We have no reason to suppose that the authors of these reports have necessarily read the work of leading close relationship theorists. But the underlying concepts of marriage becoming predominant in the culture and developed most clearly by close relationship theorists exert a powerful influence on these leading theorists of family law. Both of these reports push family law in profoundly new directions whose purposes and aims are sometimes far removed from (and often contrary to) family laws former public purposes that included protecting marriage and the best interests of children.
The American Law Institute Report: Principles of the Law of Family Dissolution
The ALI report seeks to change existing family law in a number of key areas. First, the report moves away from the notion of public standards for marriage and parenthood. Instead, it emphasizes individualized decision-making and voluntary adult arrangements through prenuptial and marital agreements, parenting plans, and separation agreements.31 Public standards of the sort that once influenced family law are, in this report, subject to relentless critique for their failure to promote
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diversity and their tendency to impose social stereotypes.32 Such standards for familial life run counter to the commitment this society avows towards family diversity.33 The authors warn that even when a determinate standard conforms to broadly held views about what is good for children, it can intrude just as indeterminate standards do on matters concerning a childs upbringing that society generally leaves up to parents themselves, and standardize child-rearing arrangements in a way that unnecessarily curtails diversity and cultural pluralism.34 Protection of diversity Professor Katherine Bartlett, one of the reports three main becomes the central public drafters (or reporters), said that the passion that drives her work is task of family law.
the value I place on family diversity and on the freedom of individuals to choose from a variety of family forms. This same value leads me to be generally opposed to efforts to standardize families into a certain type of nuclear family because a majority may believe this is the best kind of family or because it is the most deeply rooted ideologically in our traditions.35
Instead, Bartlett wants to embrace equally all forms of intimate relationships. She and her peers aim to de-privilege marriage by treating cohabiting and other kinds of relationships just like marriage. In this view, protection of diverse constructions of intimacy becomes the central public task of family law. Second, the ALI proposes to sideline what it calls traditional marriage, resituating marriage as merely one of many possible and equally valid family forms, along with cohabiting couples, singles, gay and lesbian families, and others.36 The report presses toward full legal marriage rights for same-sex couples by seeking to place same-sex couples, cohabiters, and married people all on the same level playing field when they dissolve their unions. The only sustained discussion of the characteristics of conjugality occurs in the chapter devoted to domestic partnerships. The report pushes aside the legal formality of marriage in order to refocus family law on relationships that may be indistinguishable from marriage.37 The social ecology of male/female bonding does not appear as one of the thirteen indicia of a marriage-like relationship.38 This new understanding of marriage seeks to replace conjugality with relationship or couplehood as the central organizing principle of family law. According to the ALI report, this emphasis on the character of the relationship and the recognition of a diversity of marriage-like relationships draws its inspiration from Canada.39 Third, the reports recommendations shift the focus from biological parenthood to functional parenthood (with functional parenthood meaning the day-to-day work of raising children). The report argues that the traditional biological view of parenthood as an exclusive, all-or-nothing status fails to grapple with diverse constructions of parenting in contemporary society.40
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Finally, the report is reluctant to define some of the key institutions marriage, family, and parenthood that it targets for legal reform. Yet despite the authors reluctance to pin themselves down, a discernible vision of human relationships percolates through this document. In their view, marriage and parenting are relationships with very high degrees of plasticity and indeterminacy. They are only given meaning by the choices of diverse individuals in a wide array of relationships. In this view, marriage is infinitely malleable. Only the vaguest definitions are possible. Marriage, the authors venture, is an emotional enterprise, with high returns and high risks.41 It is a function of individual commitments and accommodations: Different couples arrive at different accommodations in their relationships, and some depart from the social conventions. Intimate relationships often involve complex emotional bargains that make no sense to third parties with different needs or perceptions.42 In the view of the ALI authors, marriage has almost no real public content. Instead, marriage is the relational play of highly subjective, diverse constructions of intimacy and love. The implications of this constructivist view of marriage surface in the documents opening discussions of no-fault divorce. In a constructivist world of marital intimacy, it is all but impossible to assign fault when intimacy breaks down. Without anchors of meaning for marriage, fault becomes an almost empty concept. Even the word cause loses meaning; there can be no such thing as an objective cause of a divorce. The authors of the ALI report tell us that some individuals tolerate a spouses drunkenness or adultery and never resort to divorce. Others, they say, may seek a divorce if a spouse grows fat or spends long hours in the office.43 When this happens, they ask, is the divorce caused by one spouses offensive or unattractive conduct, or by the others unreasonable intolerance? The reports answer is: who can say? The complexity of individual choices makes it impossible to determine cause.44 The ALI reporters warn that any attempt to do so necessarily involves a sleight of hand, since it requires a moral assessment that amounts to rewarding virtue and punishing sin.45 Aside from the most minimal of standards of conduct for example, it bars domestic violence the report concludes it is nearly impossible to determine after the fact what was right or wrong about spousal conduct in a marriage that is ending.
Beyond Conjugality: The View from Canada
Beyond Conjugality proposes a fundamental reconstitution of contemporary family law. As its title says, the report argues that the law must go beyond conjugality and focus on the substance of relationships rather than giving legal recognition to any specific arrangements, such as marriage. It contends that governments should recognize and support all significant adult close relationships that are neither dysfunctional nor harmful.46 The only clear standards for relational behavior are the offside zones delineated by criminal law.
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The authors of Beyond Conjugality define a close personal relationship, offering a fluid definition in which marriage is firmly placed as just one of the varied relationships adults might form:
The focus in this Report is on interdependent relationships between adults: those personal relationships that are distinguished by mutual care and concern, the expectation of some form of an enduring bond, sometimes a deep commitment, and a range of interdependenMarriage becomes cies emotional and economic that arise from these feajust one of the many tures. These economically and emotionally interdependent relationships are one of the very foundations of Canadian varied relationships social life. They may or may not involve parenting responsibiladults might form. ities that certainly influence the range of interdependencies created. They may or may not involve sexual intimacy. They may or may not be characterized by deep economic interdependency. Governments need to ensure that the law respects the diverse choices that Canadians make.47
Two legal scholars who contributed to the preparatory work for this report have argued: The role of the law ought to be to support any and all relationships that further valuable social goals, and to remain neutral with respect to individuals choice of a particular family form or status.48 In Beyond Conjugality, the Law Commission of Canada spells out the full logic of these legal ideas and trends. It recommends that legal reformers eliminate the special status accorded to marital relationships. In this view, conjugality is too restrictive, since it excludes whole categories of interpersonal relationships that exhibit patterns of interpersonal, emotional, and economic interdependence that are equivalent to, or in some cases surpass, the commitments of sexualized close relationships between heterosexuals. It urges the federal government to provide a legal framework that would capture the relational equality of all close personal relationships.49 The main direction of the Beyond Conjugality report is toward the complete elimination of the category of marriage from law. In a somewhat confusing maneuver, however, the report concludes by proposing major and significantly contradictory reforms. The bulk of the report lays out a new legal framework for dealing with close adult relationships that would replace the traditional conjugal category of marriage with one that puts all relationships on an equal playing field. Then, in the last chapter, the report does an about-face to reaffirm the legal institution of marriage while arguing for its redefinition and extension to same-sex couples. The closing argument for the redefinition of marriage in Beyond Conjugality has stolen the legal and political stage in Canada, laying out the legal template for the
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major Canadian court decisions in favor of the redefinition of marriage. This template also appears in the proposed new Civil Marriage Act (Bill C-38) which redefines marriage as a union of two persons.
Critiquing These Reports: Whats Left Out?
In these legal reconstructions, what drops out of view? Quite a lot, it turns out. Marriage serves a number of critical purposes in human culture. It addresses the fact of sexual difference between men and women, including the unique vulnerabilities that women face in pregnancy and childbirth. It promotes a public form of life and culture that integrates the goods of sexual attraction, interpersonal love and commitment, childbirth, child care and socialization, and mutual economic and psychological assistance. It provides a social frame for procreativity. It fosters and maintains connections between children and their natural parents. It sustains a complex form of social interdependency between men and women. It supports an integrated form of parenthood, uniting the biological (or adoptive), gestational, and social roles that parents play. These are large issues. Yet in these reports, with a wave of the constructivist wand, these long-standing human concerns are systematically displaced from their formerly central position in family law. In their place the authors are recommending the legal imposition of a new model of close personal relations. Despite the fact that sex-difference and opposite-sex attraction and bonding are fundamental features of human existence, and that marriage is an institution that attempts to work within this vast and complex domain, in contemporary legal debates in the U.S. and Canada, these core issues are being pushed off the table.50 Legal scholars make much of the fact that theorists have discovered no difference between married and unmarried couples, or homosexual and heterosexual relationships, when it comes to the basic dynamics of love, compatibility, and intimacy. But the authorities cited to support this thesis are strong proponents of close relationship theory.51 The problem with close relationship theory is that it is fine-tuned to discover exactly what it predicts, namely, that unmarried same-sex and opposite-sex couples reveal the same patterns of interpersonal intimacy evident in married couples. The core relational values of intimacy, commitment, interdependence, mutual support, and communication get cranked out as the exemplary values for all close relationships, including marriage. Certainly, good marriages partake of these core relational values, but marriage as an institution encompasses much more than this limited set of interpersonal concerns. Understanding marriage only as a close personal relationship, but nothing more, leaves our understanding flat and impoverished. The kinds of values or patterns cited by close relationship theorists turn out to be found in many types of relationships, not just ones in which the two people have
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sex. Friendships, sibling relationships, and parent-child attachments also partake of values such as commitment, mutual support, and the rest. By talking about relationships in terms of generic interpersonal intimacy, close relationship theorists bracket out, before the discussion even begins, the specificity of marriage as a form of life struggling with the unique challenges of bonding sexual difference and caring for children who are the products of unions.52 Today, contemporary family law theorists are bent on hamWhat is striking mering this new theory into law, usually using the avenue of constitutional law. What is striking is the breathless speed of is the speed of these these developments in the absence of any real scholarly or developments in the public debate. A particular school of thought openly aimed at absence of any public re-conceptualizing marriage first took root in the academy in the 1980s. By the late 1990s it had come to dominate fashionable debate. academic theorizing on sexual intimacy. That school of thought is successfully urging family law scholars to think in radically new ways about family law. Much of the new thinking centers on ways to transform family law from its historic role as the protector of marriage into something very close to its antagonist. What is likely to happen next?
The Future of Family Law: Four Possible Directions IF THE CLOSE relationship model of marriage triumphs, where is family law headed? One or more of at least four troubling outcomes for family law is likely.
The First Direction: Equivalence Between Cohabitation and Marriage
The first direction that family law might take is to reduce the distinctions between marriage and cohabitation by treating more and more cohabiting couples as if they were married. After all, if marriage is just a word that means close intimate relationship, what is the legal justification for treating people differently based on a wedding? In some jurisdictions, this transition is already well established. Since the characteristic features that are distinctive to marriage (including shared social norms about roles and expectations and the public vow before community, God, and the law) have already been ruled off the table by close relationship theory, today these features tend to be ignored by legal experts in favor of those aspects that make marriage and cohabitation similar. Thus, the American Law Institute report argues that the movement toward equivalence should be harmonized and universalized. The rights and benefits regarding partners should be based on the character of their social relationship,
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not their marital status.53 (The possibility that marriage might change the character of the spouses relationship is not considered.) The ALI report treats the failure to marry as insignificant and meaningless:
As the incidence of cohabitation has dramatically increased it has become increasingly implausible to attribute special significance [to] the parties failure to marry. Domestic partners fail to marry for many reasons. Among others, some have been unhappy in prior marriages and therefore wish to avoid the form of marriage, even as they enjoy its substance with a domestic partner. Some begin in a casual relationship that develops into a durable union, by which time a formal marriage ceremony may seem awkward or even unnecessary. Failure to marry may reflect group mores. Some ethnic and social groups have a substantially lower incidence of marriage and a substantially higher incidence of informal domestic relationships than do others. Failure to marry may also reflect strong social or economic inequality between the partners, which allows the stronger partner to resist the weaker partners preference for marriage. Finally there are domestic partners who are not allowed to marry each other under state law because they are of the same sex. In all of these cases the absence of formal marriage may have little or no bearing on the intentions of the parties, the character of the parties domestic relationship, or the equitable considerations that underlie claims between lawful spouses at the dissolution of a marriage. Normatively, Chapter 6 takes the view that family law should be concerned about relationships that may be indistinguishable from marriage except for the legal formality of marriage.54
Because the goal of the ALI is to treat all marriage-like relationships similarly, it is forced to define not marriage, but domestic partnership. This concept, rather than marriage, becomes the underlying social reality to which the law must conform. The ALI report defines domestic partnerships by a set of generic relationship characteristics that mark a life together as a couple.55 As more cities in the United States establish domestic partnership registries, this term is gaining recognition in law as a kind of midway status between marriage and singleness. Increasing numbers of private corporations and union agreements use any valid government recognition of a relationship as the basis for providing contractually guaranteed benefits to unmarried couples, and some permit couples simply to file affidavits affirming that they are domestic partners as the condition for receiving benefits such as health insurance. Overall, though, the argument that cohabiters have a general right to be treated as married has made relatively little headway in the United States, except in the case of same-sex couples who can legally marry in Massachusetts. Canadian courts, by contrast, have been quite receptive to the idea that treating couples differently based on marital status constitutes unjust discrimination. Like the
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ALI report, Canadian courts have cited as determinative the characteristics that are often common to both married and non-married intimacy,56 including common shelter, sexual and personal behavior,57 mutual service, social life together, societal perceptions of the couple, economic support, and parenting. Although Canadian courts have appealed to conjugal characteristics in order to establish the fundamental similarity of marital and nonmarital forms of intimate life, they have also demonstrated a surprising awareness of the dangers of doing so. For ironically, If marriage is just a close the argument that all marriage-like relationships should be relationship, why treat treated alike still requires the law to define which relationpeople differently ships are worthy of being treated as marriage-like by the courts, and continues to use marriage as the basic social based on a wedding? norm for making this distinction. In other words, when courts replace marital norms with close relationships norms, they still leave the law in the position of promoting certain normative concepts of conjugality. Canadian courts have mostly dealt with this problem by calling attention to the fluidity and plasticity of the standards they have created. In Macmillan-Dekker v. Dekker, Supreme Court Justice Bertha Wilson writes that characteristics such as sharing a home or having a sexual relationship are merely indicia of a conjugal/ spousal relationship. Wilson stresses their malleable nature:
I conclude that there is no single, static model of a conjugal relationship, nor of marriage. Rather, there are a cluster of factors which reflect the diversity of conjugal and marriage relationships that exist in modern Canadian society. Each case must be examined in light of its own unique, objective facts the seven factors [that define conjugality] are meant to provide the Court with a flexible yet objective tool for examining the nature of relationships on a case-by-case basis.58
In a dissenting opinion in 1993, Justice Claire LHeureux Dub anticipated later legal developments in arguing that these conjugal characteristics should not reinforce a normative model of conjugality:
The use of a functional approach would be problematic if it were used to establish one model of family as the norm, and to then require families to prove that they are similar to that norm. It is obvious that the application of certain variables could work to the detriment of certain types of families. By way of example, the requirement that a couple hold themselves out to the public as a couple may not, perhaps, be appropriate to same-sex couples, who still often find that public acknowledgement of their sexual orientation results in discriminatory treatment.59
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To avoid the risks of normativity, Justice Peter Cory, writing for the majority in M. v. H., suggests an infinitely plastic definition of conjugality:
Certainly an opposite-sex couple may, after many years together, be considered to be in a conjugal relationship although they have neither children nor sexual relations. Obviously the weight to be accorded the various elements or factors to be considered in determining whether an opposite-sex couple is in a conjugal relationship will vary widely and almost infinitely. The same must hold true of same-sex couples. Courts have wisely determined that the approach to determining whether a relationship is conjugal must be flexible. This must be so, for the relationships of all couples will vary widely.60 [emphasis added]
The heart of the equivalence approach is the idea that marital status is a mere formality. Similar relationships should be treated similarly, regardless of whether or not a marriage ceremony ever took place. There are at least two serious problems with the equivalence approach. First, it runs roughshod over the long-established principle that marriage requires consent. Cohabiters are now to be locked by government into a marital regime whether they like it or not.61 Indeed, for some legal scholars, coercion is precisely the point. According to Roderick Macdonald, the former president of the Law Commission of Canada, selfascription that is, the couples understanding of the relationship is of limited value in determining a couples legal status, since any such definition can be effectively blocked by one non-consenting partner in the relationship:
No matter how broadly a concept is defined by law, if the status it confers depends only on self-ascription, many of those intended to be the beneficiaries of the status will be excluded. Suppose for a moment that the law were amended to provide that persons of the same sex could get married, and that, were they to do so, the full panoply of rights and responsibilities attaching to the status of marriage would apply. This opening up of the concept of marriage might well address many of the legal concerns now expressed by same-sex couples. But, just as for heterosexual couples, it would be of no help to a partner in a common-law same-sex relationship who wants to marry but whose partner does not.62
But for many who advocate equivalence as part of a broader embrace of family diversity, the coercive aspects of this legal regime remain troubling. In the Nova Scotia v. Walsh decision, for example, the Canadian courts abruptly reversed years of legal movement in the direction of equivalence. Instead, the Court suddenly insisted on the need to respect individuals freedom to choose, or not to choose, more committed forms of partnership. Quoting an earlier opinion of Justice LHeureux-Dub, Nova
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Scotia v. Walsh argues that the decision to marry or, alternatively, not to marry, depends entirely on the individuals concerned. According to the judges, family means different things to different people all of them equally valid and all of them equally worthy of concern, respect, consideration, and protection under the law. The state should not impose a marital regime retroactively.63 The second problem with the equivalence approach is that social science evidence by and large fails to support its central contention, which is that marriage is just a formality. Instead, the Scholarship fails differences between marital and cohabiting relationships appear to support the central to be real and significant, at least in the United States, where 64 most of the research has been conducted. A group of twelve contention of the diverse U.S. family scholars, for example, recently concluded:
Cohabitation is not the functional equivalent of marriage. As a group, cohabiters in the United States more closely resemble singles than married people. Children with cohabiting parents have outcomes more similar to the children living with single (or remarried) parents than children from intact marriages. Adults who live together are more similar to singles than to married couples in terms of physical health and emotional well-being and mental health, as well as in assets and earnings. Couples who live together also, on average, report relationships of lower quality than do married couples with cohabiters reporting more conflict, more violence and lower levels of satisfaction and commitment. Even biological parents who cohabit have poorer quality relationships and are more likely to part than parents who marry. Cohabitation differs from marriage in part because Americans who choose merely to live together are less committed to a lifelong relationship.65
equivalence approach.
Moreover, three-quarters of children born to cohabiting couples are likely to see their parents split up by the time they are sixteen years old.66 Whether the standard is relationship durability or relationship satisfaction or tangible benefits to adults or the well-being of children, cohabitation is not the same thing as marriage. The equivalence regime is unjust because it treats couples who are unwilling to make a marriage commitment as if they have done so. It is unwise because the law communicates to younger people the demonstrably false idea that marital status makes no difference for the well-being of a couple or their children.
The Second Direction: Redefining Marriage as a Couple-Centered Bond
A second direction marriage law might take is substantive redefinition. In this approach, the law would continue to allow distinctions to be made between married couples and cohabiting couples, with marriage remaining a distinct legal status. But
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the meaning of marriage would be redefined by courts, primarily on behalf of samesex couples, as a commitment between any two people. The new legal definition strips all remaining remnants of sex, gender, and procreativity from the public, shared meaning of marriage. In contrast to the equivalence view, once full access to marriage is granted irrespective of sex, any legal benefits to domestic partnerships should in theory be rolled back.67 (This approach has been called the Levelling Position.)68 Marriage becomes the only legally recognized close relationship.69 To privilege one version of marriage in law as a gender-neutral, couplecentered bond that centers primarily on commitment necessarily involves the public repression of alternative meanings. In classrooms and courtrooms today, proponents of the couple-centered conception of marriage are arguing that the commonly held view of marriage as a conjugal union of man and woman is a prejudice analogous to racism. In Canada, the majority of provincial courts have argued that this irrational and discriminatory view of marriage needs to be weeded out of public law and replaced. The proposed Civil Marriage Act is attempting to bring the rest of Canada into harmony with this legal conclusion. Meanwhile, alternative legal categories such as civil unions have been panned as a repugnant separate but equal category.70 Because the law retains the special legal status associated with marriage, the redefinition approach authorizes the state to begin to exert negative pressure on private individuals, organizations, and communities that subscribe to the older conjugal view of marriage now viewed as discriminatory by the courts. Court decisions in both Massachusetts and Canada authorizing same-sex marriage follow this basic script. Each calls for the substantive redefinition of marriage as a union of two persons. Each also inaugurates the process of stigmatizing the alternative conjugal view of marriage as discriminatory, suggesting the future pariah status of people who cling to the older view. In Canada, Ontario Justice Harry S. Lafarge argues that the real, although unstated, purpose of the restriction [of marriage to a man and a woman] is to preserve the exclusive privileged status of heterosexual conjugal relationships in society. He declares this understanding of marriage to be repugnant.71 In the U.S., the four judge majority in Goodridge v. Department of Public Health (which legalized same-sex marriage in Massachusetts) denounced as discriminatory the conjugal view of marriage as a union of man and woman. The belief that marriage intrinsically unites male and female in a sexual bond that reinforces their personal obligations to each other and to any children they produce is dismissed as rooted in persistent prejudices against persons who are (or who are believed to be) homosexual. The Constitution, they warn, quoting a 1984 Supreme Court case, cannot control such prejudices but neither can it tolerate them.72 As the majority in Baehr v. Lewin (a 1993 case in Hawaii regarding same-sex unions) warned, constitutional law may mandate, like it or not, that customs change with an evolving social order.73
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This strong language suggests that the legal creation of a couple-centered understanding of marriage is achieved by placing the older conjugal meaning of marriage under a moral and legal cloud of suspicion. It will place the law in a stance that is hostile towards cultural and religious communities that adhere to the ethos of conjugal marriage as the backbone of their communal life. In an important decision, Canadian Justice Robert Blair candidly remarked that this change was not an incremental one but rather a profound change with serious implications Sex, gender, for vast areas of marriage and family law. Blair states that
the consequences and potential reverberations flowing from such a transformation in the concept of marriage are extremely complex. They will touch the core of many peoples belief and value systems, and their resolution is laden with social, political, cultural, emotional, and legal ramifications. They require a response to a myriad of consequential issues relating to such things as inheritance and property rights, filiation, alternative biogenetic and artificial birth technologies, adoption, and other marriage-status driven matters.74
and procreativity are stripped from marriages public meaning.
Both advocates and opponents agree that the redefinition of marriage would do far more than simply incorporate the small number of homosexuals in the population into the existing marital regime.
The Third Direction: Disestablishment, or the Separation of Marriage and State
How might we avoid contentious public disputes about the meaning of marriage? One possible solution is to conclude that the law should no longer establish any definition of marriage. Only a few years ago, almost no one favored this idea. But today this option appears to be gaining converts across the political spectrum.75 Disestablishment is thus a third possible direction for the future of marriage. On the left, queer theorists such as Michael Warner adopt a radical liberationist argument for disestablishment.76 Warner argues that the extension of marriage to gays and lesbians is no less than an attempt to herd all human sexuality into the narrow conjugal box. Others support disestablishment because they feel that marriage is essentially a religious institution, something in which a secularized liberal state should have no role. One proponent of this view, Nancy Cott, argues that Christian models of conjugal monogamy have been legally imposed on social life.77 Another author similarly characterizes the permanent, monogamous, marriage, nuclear, heterosexual concept of family as an explicitly Christian concept of marriage.78 In this view, the heterosexual definition of marriage legally imposes a particular theological or religious vision of marriage on society, one that violates the convictions
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of sexual dissenters and nonconformists.79 Cott and others feel that the separation of church and state requires ridding the law of any theological vision of marriage. However, redefining marriage provides no easy solution to the dilemma of state endorsement of some religious view. Religious groups can be found that endorse same-sex marriage, polygamy, monogamy, and even polyamory.80 In choosing any substantive vision of marriage, therefore, the state will end up endorsing some religions marital vision. Faced with competing and conflicting conceptions of marriage, proponents of disestablishment argue that the state should take this breakdown of social consensus as the cue for it to get out of the marriage business.81 They argue that the liberal state learned how to adopt a stance of measured distance towards religion and the economy. It must now adopt a stance of measured distance towards marriage. Civil matters related to interdependent relationships (taxation, inheritance, community property, and more) could be handled by a more neutral registry system. The removal of marriage as a legal category was one option put forward by the Canadian court decisions striking down the existing law of marriage.82 It was also proposed as an option by the Department of Justice in its directives to Canadas Standing Committee on Justice and Human Rights in hearings on the question of same-sex marriage. The disestablishment of marriage would be achieved by removing all federal references to marriage and replacing them by a neutral registry system.83 In the Beyond Conjugality report, the Law Commission of Canada considers Nancy Cotts argument for disestablishment:
Borrowing the term from the history of church and state, Nancy Cott has described the transformation in the relationship between marriage and the state in the United States as disestablishment. Just as the state does not recognize a single, officially established church, no longer is any single, official model of adult intimate relationship supported and enforced by the state.84
Instead, the law would embrace virtually all interdependent relationships. Indications of a marital, conjugal relationship such as sexual intimacy, cohabitation, the dyadic restriction (only two people can get married), and even restrictions based on consanguinity would be removed from law.85 This approach is grounded in the conviction that democratic societies have a fundamental obligation to respect and promote equality between different kinds of relationships, to celebrate the diversity of personal adult relationships, and to honor the freedom to choose whether and with whom to form close personal relationships.86 The new family law would be in essence a universal buddy system that offers legal protections for all citizens, whether straight or gay, parents or not, and whether they are involved with only one person, or many.
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Yet once family law becomes a universal buddy system, some have reasonably asked why the law should be concerned at all about who is having sex with whom.87 That the law traditionally has an interest in sexual activity largely because children often arise intentionally or not from heterosexual couplings seems currently to escape the attention of many scholars and, indeed, an increasing number of judges. Rather, they conclude that the legal preoccupation with sexual intimacy is arbitrary and pointless. One study on the legal irrelevancy of sex approvingly cites Eric Lowther, a As the law becomes a member of the Canadian Parliament, who said the following universal buddy system, when speaking in opposition to the extension of benefits to why should it care about same-sex couples:
There are many types of gender relationships: siblings, friends, roommates, partners, et cetera. However, the only relationship the government wants to include is when two people of the same gender are involved in private sexual activity, or what is more commonly known as homosexuality. No sex and no benefits is the governments approach to this bill. Even if everything else is the same, even if there is a long time cohabitation and dependency, if there is no sex there are no benefits. Bill C-23 is a benefits-for-sexbill. It is crazy.88
who is having sex with whom?
Lowther favors the existing definition of marriage as a heterosexual bond. His critics are advocates of same-sex marriage. Yet both agree that there is a fundamental flaw in the current legal construction of conjugality. According to them,
the question of whether a relationship has a sexual component bears no connection to legitimate state objectives. Once this is recognized, and sex is removed from the scope of relational inquiries, the distinction between conjugal and non-conjugal relationships collapses. And we then need to develop better ways to determine when and how the existence of an adult personal relationship is relevant and should be recognized in law.89
The fundamental argument of the Law Commission of Canada in Beyond Conjugality is the same. The report argues for a broad legislative approach to all adult close relationships that involve significant mutual dependence. The presence or absence of sexual conduct in the relationship is considered incidental. The fact that some kinds of sex acts produce children and some do not merits no consideration. As mentioned earlier, Beyond Conjugality does end somewhat confusingly with a call for the redefinition of marriage, even after making a strong case for disestablishment.90 However, the original thrust of the report, found in its title, was to lay out a new legal framework which would eliminate the category of conjugality from
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law and replace it with a more inclusive civil registry system. In such a system, marriage as we have known it marriage as a social institution would likely still play a role for some time to come. But in the eyes of the law, that role will be a bit part, written in very small print and destined eventually to wither away. In Canada this classical liberal argument for disestablishment has been drowned out by a newer and more aggressive social liberalism arguing for a redefinition of marriage. But it was one of Canadas historical Liberal leaders, Pierre Elliot Trudeau, who laid down the principle that the state must get out of the bedrooms of the nation. Some liberals argue that disestablishment is the only viable alternative in the face of apparently irresolvable legal and political disagreements about the authoritative meaning of conjugality. On the right-leaning end of the spectrum, certain religious constituencies are also questioning whether disestablishment might be preferable to a full-fledged legal redefinition of marriage. They point out that the political regulation of marriage was a relatively late development in the history of Western marriage. For some, the state has done more harm than good in its attempts to influence the direction of the marriage culture. Perhaps its time to get the state out of the marriage business.91 They hope that, just as the separation of religion and state is responsible for the relatively flourishing religious sector in the United States, getting the government out of marriage would be a prelude to a marriage revival. They argue that marriage, like religion, can only really flourish when it is freed from political control and manipulation. But it is clear that there is nothing neutral about the state refusing to recognize and accommodate the fact of marriage in law. In places like the United States, where marriage remains a significant legal category, its disestablishment would take an enormous amount of political and cultural energy of the kind that is unlikely to feed a flourishing marriage culture. More likely the disestablishment of marriage would support a troubling and already all too common perception that marriage may be a nice ceremony but is no longer a key social institution. Ironically, the consequence of disestablishment is not likely to be greater individual freedom, but rather more intense and far-reaching state regulation of formerly private relations. Married people generally regulate their family affairs without direct government interference, except in cases of criminality or violence. By comparison, the state routinely tells divorced and unmarried parents when they can see their kids and how much child support to pay, and often intervenes in thorny disagreements such as what school the child will attend, or what religion he or she will be raised in, or if a parent is allowed to relocate. Outside of marriage, the state is necessarily drawn into greater and more intrusive regulation of family life. Because sex between men and women continues to produce children, and because women raising children alone are economically and socially disadvantaged, governments will continually wrestle with expensive and intrusive efforts to protect children born outside of marital unions.
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Finally, the rights disestablishment argument presumes that the state has no key interest in the existence of marriage. While marriage is partly a religious institution for religious people, it has never been only a religious act. In the Western tradition marriage has represented the best efforts of state and society to integrate disparate goods love, money, mutual support, sex, children in the service of helping men and women raise the next generation in circumstances most likely to sustain them, their children, and the society. The huge and complex slice of human experience constiAbsent marriage, tuted by heterosexual bonding, procreativity, and parent-child the state is drawn into connectedness sweeps across non-religious as well as religious spheres of social activity and meaning. In a real sense, marriage more intrusive regulation is bigger and more elemental to human life than religion. of family life. Marriage in every known society has been deeply influenced and colored by religious traditions in the societies in which it has taken root. But marriage is even older than some of our oldest religious traditions. It existed before Judaism and well before Christianity and Islam. Marriage is influenced by religion, but it is not solely a religious institution, and it is certainly not solely a Christian institution. Religious traditions and civil society have critical roles to play in shaping a marriage culture; but in a large, complex society, government and the law will ignore marriage at their peril. Some disestablishment proponents also seem to assume that children can be treated as a category separate from adult relationships. Martha Fineman, for instance, argues that the law should get out of adult relationships and leave them to private contracts. She believes that this move would allow the law and public policy to focus its attention on adult-child caregiving relationships. However, this seemingly logical deconstruction is but a symptom of the family fragmentation that has a deeply negative impact on children. Disestablishment might work well in a world of freestanding adult relationships. But the bedrooms of the nation still produce children. The offspring of our sexual bonds are profoundly vulnerable and demand the states interest.
Why Just Two?
As Beyond Conjugalitys provocative title suggests, the family legal trends sweeping North America and the world have no natural or necessary stopping point. All of these major trends in law are part of a movement to channel public law into a new authoritative framework that is beyond conjugality. Where is this movement leading? Once marriage is repositioned as merely one of many equally valid examples of a close relationship, is there a compelling rationale for refusing legal recognition to any close relationship, including all forms of friendship and mutual care? Probably not. If conjugal relationships vary widely and almost infinitely, then virtually any
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caring or sharing close relationship is arguably worthy of state recognition and social support. Such a move appears to set the stage for a vast extension of the rule of law into the sphere of intimate relations, including legal recognition of multiple close relationships. Those determined to alter the public meaning of marriage admonish us to shelve such questions. A Canadian human rights lawyer insists that problematic concerns about where new legal changes might lead need not be decided at this point. The immediate and pressing legal challenge is to redefine marriage in order to include same-sex couples. Raising the problem of future legal implications merely complicates an already thorny issue.92 However, the debate about the next round of legal reforms has already begun. In An Introduction to Family Law, Gillian Douglas of Cardiff Law School agrees with the American Law Institute report, arguing that the continuing limitation of marriage to heterosexual couples derives from an ideological rather than a logical imperative. She follows this observation with a deconstructive swipe at another key pillar of what she terms the traditional view of marriage its limitation to two people. Douglas writes: The abhorrence of bigamy appears to stem again from the traditional view of marriage as the exclusive locus for a sexual relationship and from a reluctance to contemplate such a relationship involving multiple partners.93 Critics of legalizing same-sex marriage have occasionally argued that once gender is removed from the definition of marriage, there will be little rationale to limit the number of people in a marriage. This slippery slope argument is usually derided by advocates of same-sex marriage as being made in bad faith. What most people do not know is that the argument for the legal recognition of polyamory is more likely today to be raised in legal circles by leading proponents of close relationship theory, not critics of same-sex marriage. Much talk about polyamory is coming from the left, not the right. Hoping to ride the coattails of the gay marriage movement, some, like the Unitarian Universalists for Polyamorous Awareness, are now pushing for liberal religious traditions to recognize multiple-partner marriage.94 Similarly, Beyond Conjugality raises the question of whether the new legal category of close personal relationship should be limited to two people. The report insists that the values and principles of autonomy and state neutrality require that people be free to choose the form and nature of their close personal adult relationships.95 Roger Rubin, a former vice-president of the National Council on Family Relations, is confident that the current movement to redefine marriage has set the stage for a broader discussion over which relationships should be legally recognized.96 Professor Elizabeth Emens of the University of Chicago Law School has followed up with a major legal defense of polyamory.97 We discover that in the plastic world of intimate relationships, firm distinctions begin to dissipate. Severed from its link to the biology of heterosexual reproduction, conjugality begins to inflate and morph. The first inflation successfully drew
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cohabitating relationships into the marital regime. The second inflation, the assimilation of same-sex relationships, has jumped quickly from the academy into the courtroom. Its legal victories are beginning to stack up. The legal challenge to the two-person nature of marriage is only a matter of time. Yet when the dust settles, there is likely to be real dissatisfaction with the impoverished horizons of this new paradigm, especially with its likely negative impact on the lives of everyday people. A culture of pure relationships is marked by profound intellectual The bedrooms of the myopia. It fails to bring into focus fundamental facets of human nation still produce life: the fact of sexual difference; the enormous tide of heterosexual desire in human life; the massive significance of children. male/female bonding and procreativity; the unique social ecology of parenting, which offers children bonds with their biological parents; and the rich genealogical nature of family ties and the web of intergenerational supports for family members that they provide. These core dimensions of conjugal life are not small issues. Yet in the current debate, even alluding to them typically invites blank, angry stares. At this crucial moment for marriage and parenthood in North America, there appears to be no serious intellectual platform from which to launch a meaningful discussion about these elemental features of human existence. About these fundamentally important issues, contemporary family law scholarship is both silent and dismissive.
Parenthood: The Next Legal Frontier HOW WILL MOVING beyond conjugality affect legal notions of parenthood? Marriage organizes and helps to secure the basic birthright of children, when possible, to know and be raised by their own mother and father. A pivotal purpose of this social institution has been to forge a strong connection between male/female bonds and the children resulting from those bonds. Moving beyond the conjugal view of marriage inevitably involves a legal reevaluation of the relationships between children and their parents. In particular, what is being put into play is the idea of biological parenthood as a fixed right that the state is obliged to recognize. The Civil Marriage Act proposed by the Canadian government not only redefines marriage but also simultaneously eliminates the category of natural parent from federal law and replaces it with the category of legal parent.98 This kind of move threatens a fundamental reconfiguration of the norms of marriage and parenthood. Some indication of the future might lie in the reports put out by the American Law Institute and the Law Commission of Canada. These reports have much to say about parenting, much of which may be disturbing to parents.
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Beyond Conjugality draws a bright line between marriage (a recognized close personal adult relationship) and parenthood. The authors argue that these two categories raise very different issues.99 Parenthood is not related to marriage. The central purpose of marriage is to provide an orderly framework in which couples can express their commitment to each other and voluntarily assume a range of legal rights and obligations.100 Children are stripped from the core meaning of marriage and instead shuffled into another category of close personal relationships known as intergenerational relationships that involved the rearing of children.101 The American Law Institute carries its suspicion of legally enforced norms in family life into the very definition of parenthood. For the ALI authors, even age-old standards, such as the one stating that family law should operate in the best interests of children, are questioned on the grounds that they introduce moral norms into family law.102 Katherine Bartlett, one of the ALI authors, writes that too often this age-old standard masks normative judgments about preferred models of child-parent relationships:
[T]he best interests of the child is a highly contingent social construction. Although we often pretend otherwise, it seems clear that our judgments about what is best for children are as much the result of political and social judgments about what kind of society we prefer as they are conclusions based upon neutral or scientific data about what is best for children. The resolution of conflicts over children ultimately is less a matter of objective fact-finding than it is a matter of deciding what kind of children and families what kind of relationships we want to have.103
In the ALI report, Bartlett and her co-authors worry that any appeal to an objective standard for parental conduct might threaten the one value that figures most prominently throughout the pages of their report, that of family diversity:
[E]ven when a determinate standard conforms to broadly held views about what is good for children, it can intrude just as indeterminate standards do on matters concerning a childs upbringing that society generally leaves up to parents themselves, and standardize child-rearing arrangements in a way that unnecessarily curtails diversity and cultural pluralism.104
In a lecture, Bartlett notes proudly that she and her team were able to come up with a default rule that avoids these kinds of empirical and normative assumptions about the family and is, accordingly, less family-standardizing.105 This default rule points to past parenting practices. How individual adult claimants have historically participated in the day-to-day raising of the children with whom they are in close
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relationship will determine their parental status: [This rule] operates not from a state-determined, family-standardizing ideal but from where the parents themselves left off. It is based not on empirical evidence of the experience of families in the aggregate but on the individual experiences of the family before the court.106 Moreover, methods of determining custody or parental arrangements must be challenged if they run counter to the commitment this society avows toward family diversity.107 In service of this goal, the ALI report affirms the positive The ALIs close relationship correlation between the interests of the parents and the welfare regime transforms of their children.108 It argues that the courts must carefully respect the diverse choices and lifestyles of parents since the parenthood into a domain improved self-image of the parents rebounds to the ultimate created by the state. benefit of the child.109 It suggests that the law must protect and foster parental self-esteem. If basic self-esteem needs are not met in the judicial process, then parents are more likely to engage in strategic, resentful or uncooperative behavior from which children may suffer.110 This broad support for any family that adults dream up is supposed to be in the interests of children. But just in case, and with remarkable bluntness, the ALI report notes: Even a childs awareness of such a relationship, or dislike of the individual with whom a parent has developed an intimate relationship, should not justify interferences relating to the childs welfare or parental fitness; children cannot be protected from every source of unhappiness and unease.111 In the ALI report, even the question who is a parent? is up for grabs. In a nutshell, their viewpoint states that unless otherwise specified, a parent is either a legal parent, a parent by estoppel, or a de facto parent. The category of the natural or biological parent does not figure as an independent category in this threefold classification, nor do adoptive parents. Instead, biological and adoptive parents are folded into the other three categories.112 Traditionally, parent by estoppel has been the case in which a man, in good faith, believes that he is the father of his spouses child and continues fully accepting his parental responsibilities even after he learns that he is not the biological father. The ALI report pries open this concept in order to offer it to any biologically unrelated person who wants to take on parenting responsibilities. Thus, a parent could be a person who lived with the child since the childs birth, holding out and accepting full and permanent responsibilities as parent, as part of a prior co-parenting agreement with the childs legal parent.113 The report thus defines a parent by estoppel as an individual who, even though not a legal parent, has acted as a parent under specified circumstances which serve to estop [stop, block] the legal parent from denying the individuals status as a parent. This category is afforded all of the privileges of a legal parent.114
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The extension of the category of estoppel aims, in part, at legalizing the parental status of same-sex partners:
[This report] contemplates the situation of two cohabiting adults who undertake to raise a child together, with equal rights and responsibilities as parents. Adoption is the clearer, and thus preferred, legal avenue for recognition of such parent-child relationships, but adoption is sometimes not legally available or possible, especially if one of the adults is still married to another, or if the adults are both women, or both men.115
What is missing from the triad of legal parent, parent by estoppel, and de facto parent? What is missing is the core idea that parenthood is a category based on biological realities beyond governmental redefinition. The legal definition of parent is severed from its deep links to biology and based on a more pliable assessment of the people who are said to care for a child on a day-to-day basis. Parenthood thus becomes a flexible category that gives courts and legislatures the capacity to redefine parental relationships based on evolving standards. In the ALI report, these standards are typically portrayed as permissive. For example, if an adult wishes to take on quasi-parental responsibilities for a child, the courts should enforce his or her rights. But in principle, if the best interests of the child require the imposition of parental responsibilities on unrelated adults, there is no good reason in the ALI worldview to abstain from doing so. By living with a parent, a boyfriend or girlfriend can acquire legally enforceable rights to a child. They may also (and this point is typically unclear) acquire legally enforceable responsibilities. Parenthood becomes a flexible legal category, with the courts rather than the childs existing parents determining when a person has devoted enough care and attention to an unrelated child to acquire parental rights. Such proposals attribute a great deal of intention and self-awareness to choices that adults often make without thinking them through a great deal. For instance, does a father really intend for his current live-in girlfriend to have a long-term role as a parent in his childs life, even after he breaks up with her, simply because he welcomed her caring for his child while they lived together? When a parent remarries, he or she makes an active decision to form a new family, to bring a stepparent into their childs life in a parent-like role. Do cohabiting parents approach the decision to move in together with the same sense of investment? Some may, but many may not and may avoid marriage precisely because they are unsure how long they want the relationship to last or how much influence they want their current love interest to have in their childs life. Surely some adults would be aghast to think that, simply by living with a childs parent, the law might someday require them to take on financial or other responsibilities for the child, even if they were no longer involved with the childs parent.
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Fragmenting Parenthood
Almost as an afterthought, the ALIs new close relationship marital regime transforms parenthood into a domain created by the state. One scholar writes that the traditional privileging of biological parenting represents a heterosexual constraint on the wide range of family forms and practices.116 Eliminating the notion of biology as the basis of parenthood, and allowing parenthood to fragment into its plural and varied Is the fathers forms, is necessary if courts are to make family diversity a legal and cultural reality.117 ex-girlfriend a parent? Jonathan Herring, who sees such fragmentation as a positive change, identifies five contemporary varieties of parenthood. First, he writes, there is genetic parenthood, the individuals that supply the egg and sperm needed to produce a baby. Second, there is coital parenthood, the union of sperm and egg (typically, but not always, in heterosexual intercourse). Third, there is gestational parenthood, the carrying of the fetus by a pregnant woman.118 Fourth, there is post-natal (social or psychological) parenthood, the raising of the child after birth. Finally, there is a fifth category that the author calls intentional parenthood, when an adult or adults who intend to be parents initiate a process (through surrogacy or assisted reproduction) leading to the birth of a child.119 All five forms of parenting can be analytically and practically separate from one another, as diverse adults participate in the distinct activities of supplying genetic material, conceiving, carrying, birthing, and nurturing. Might breaking parenthood up into all its constituent parts lead to some confusion? The American Law Institute report authors think so. They explore this expanding pastiche of parental identities that Herring sifts out of current legal debates, trying to open new legal doors to accommodate the fragmentation. One scholar, Richard Storrow, argues that the reports shift towards a functional view of parenthood is heading in exactly the right direction, but suggests that the tweaking of legal categories will have to go further. Specifically, Storrow argues that the interests of intentional parents must be addressed.120 Parenthood by pure intention represents the full cultural shift from an emphasis on biogenic unity to an emphasis on the family of choice.121 Parents who set the process in motion through assisted reproduction or surrogacy become his ideal type for this type of parenthood. One rather large problem with this idea is that about half of pregnancies today are still unplanned. They are unintentional. The brave new world of intentional parenthood is supposed to provide a child for every adult who wants one. But lets flip the picture and look at the situation from the childs point of view. If intention, not biology, becomes the thin legal ground holding parents accountable to their children, what happens to all the children who are conceived in a moment when
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they were not actively wanted by both parents? At a minimum, how will the state enforce child support payments from fathers who can claim that they never intended to be a parent in the first place? If enough parents were to buy the American Law Institute view that biology is essentially unimportant, are there enough intentional adoptive parents out there to raise all the unintended children who happen to be born anyway? In their push to delink law from biology, legal reformers seem blind to the basic facts of human reproduction. Only the tiniest fraction of babies are born today through elaborate fusions of genetic, coital, and gestational parenthood. The baby born of one womans eggs, in another womans womb, with the aid of a sperm donor, rates headlines precisely because the event is so rare. The vast majority of babies are still born, both intentionally and not, to men and women who are engaging in the passionate and often unpredictable business of sex. Fragmentation of parenthood means more fragmented lives for children who will be jostled around by an increasingly complex set of adult claims. It also means more systematic intrusion into the family and adjudication of its internal life by the state and its courts. To address the problem, the courts might be wise to consider an old idea: marriage. When it works, marriage unfragments. It manages to hold together the intentional, the biological (genetic, coital, and gestational) and the psychological and social dimensions of parenthood. It creates a thick social ecology that integrates, rather than endlessly fractures, the basic features of human parenthood. Across cultures, the institution of marriage works to support the ties of natural and adoptive parents to their children. It provides broad public affirmation and support for this type of bond. It enshrines a basic birthright of children whenever possible to know, to be connected to, and to be raised by both of their biological parents. It does so in a robust but malleable way (with the possibility of adoption for exceptions to the rule).122 The United Nations Convention on the Rights of the Child states that the child shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents (Art. 7).123 The authors of this convention brilliantly recognize several key features of childrens individual identity and security having a name, being a citizen of a nation whose laws protect you, and, whenever possible, being raised by the two people who made you. New legal changes threaten further to undermine this birthright. For instance, whatever one feels about the merits of same-sex marriage, it is clear that legalizing these unions must, of necessity, diminish the social importance of children being raised by their own biological parents. Rewriting marriage laws to accommodate same-sex unions sends a powerful signal to the vast majority of would-be parents, who are heterosexuals, that the law is not explicitly concerned about children being raised whenever possible by their biological mother and father. Even candid
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advocates for same-sex marriage recognize that the inclusion of these unions in the social ecology of parenting entails fundamental shifts for children. One advocate concedes (and celebrates) the fact that building law upon gay experience
involves the reconfiguration of family de-emphasizing blood, gender, and kinship ties and emphasizing the value of interpersonal commitment. In our legal culture the linchpin of family law has been the marriage between a man and a woman who have children through proIntention, not biology, creative sex. Gay experience with families we choose delinks family from gender, blood, and kinship. Gay families of choice holds parents accountable are relatively ungendered, raise children that are biologically to their children. unrelated to one or both parents, and often form no more than a shadowy connection between the larger kinship groups.124
Precisely this disconnect between children and natural parents is the new legal vision of marriage that has emerged out of the recent Canadian judgments in favor of same-sex marriage in Ontario, British Columbia, and Quebec. These decisions evaluate two features: the unity of the couple and functional parenthood (that is, the day-to-day raising of children). In this view, the procreative link between marriage and children drops completely out of view, as well as the genealogical rights of children to know and be connected to their ancestors. Further, in Canadas proposed new Civil Marriage Act, the redefinition of marriage requires the elimination of the category of natural parent across federal law. Parenthood is thus transformed into a legal construct that has no inherent relationship to sexuality and childbirth. In the world of the Principles of the Law of Family Dissolution and Beyond Conjugality, adults construct relationships and children adjust. This understanding of parent-child relationships frees adults to live as they choose. But the data strongly suggest that not all adult constructions of parenthood are equally child-friendly. For example, the common assumption of those who advocate for flexible definitions of parenthood is that children are just as safe in continuing contact with non-biologically related caretakers as they are with biological parents. But the actual evidence points in the opposite direction. 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 alone with their mothers boyfriends. Robin Wilson, a legal scholar at the University of Maryland, has presented the empirical evidence of increased risk in an article in the Cornell Law Review.125 To put it mildly, the data suggest that legal theorists are standing on very thin ice when they dismiss or debunk the significance of biological parenthood. Delinking parenthood from marriage, embracing the variety of relationships that adults construct as the new standard, and conceptualizing the parent-child
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relationship as just another close relationship, may free adults to live in the diverse family types they choose, but it seriously undermines the laws historic role to seek to protect the best interests of children. Children need and desire, whenever possible, to be raised by their own parents.126 Though fallible, marriage is societys best known way to try to fulfill that need. A legal system that moves its emphasis from partners to parents may sound good for children, but the actual practice of fragmenting parenthood and valuing intentional parenthood over all else will ultimately leave children more, rather than less, insecure.
Conclusion SOCIAL INSTITUTIONS ARE constituted by their shared public meanings. The legal imposition of new and contested public meanings upon marriage and parenthood represents the power of the state hard at work in the soft-shelled domain of civil society. This legal and political imposition on marriage seeks to re-engineer the authoritative public norms of these institutions on the basis of appeals to relatively new theories of diversity, relationality, and functional parenthood. This trend raises fundamental questions for liberalism. Is the state violating the measured distance that the liberal state should adopt towards the basic institutions of civil society? Are the courts legally imposing a sectarian form of social liberalism? Are the courts abandoning their traditional role of protecting civil society from encroachment by the state?127 These moves also hold questions for the future of marriage itself. Institutions like marriage and parenthood are not simply mechanisms to fulfill individual needs and aspirations. They are also thick, multi-layered realities that speak to the needs for meaning and identity within human community. Marriage is the complex cultural site for opposite-sex bonding. A rich heritage of symbols, myths, theologies, traditions, poetry, and art has clustered around the marital bond. To change the core features of marriage is to impact real people, adults and children, whose lives will be significantly shaped by the renewal or decline of this institution. The type of legal theorizing proposed by the American Law Institutes Principles of the Law of Family Dissolution and the Law Commission of Canadas Beyond Conjugality systematically marginalizes, and drives to the very periphery of public law, the core features of conjugal marriage and parenthood. The complex social institution of marriage does require ongoing change to sustain and enrich its development. But the well-being of children, parents, couples, and society is seriously threatened by the push to de-normalize the core features of marriage and parenthood and to strip their historic public meanings from law and public discourse. In this remade world, marriage is reconstituted in order to celebrate relationship diversity. What drops out of view? Quite a lot, it turns out. Marriage serves critical
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purposes in human culture. It addresses the fact of sexual difference between men and women, including the unique vulnerabilities that women face in pregnancy and childbirth. It promotes a unique form of life and culture that integrates the goods of sexual attraction, interpersonal love and commitment, childbirth, child care and socialization, and mutual economic and psychological assistance. It provides a social frame for procreativity. It fosters and maintains connections between children and their natural parents. It sustains a complex form of social interdependency between men and women. It supports an integrated form of parenthood, uniting the biological (or adoptive), gestational, and social roles that parents play. The value of diversity is key to justice in our civil society. But by itself, diversity is an inadequate basis for understanding marriage as an institution. The diversitytrumps-everything approach marginalizes what tradition, religion, and even now the social sciences tell us about family formation, parenting, and childrens wellbeing. Can an insistence on family diversity as our primary lodestar offer any meaningful insight into the distinctive significance of marriage in human culture? Can close relationship theory stir up any reflective wonder about the remarkable social-sexual ecology that animates human culture? Can functional parenthood capture the deepseated human concern for connection between children and their natural parents? For most ordinary citizens on both sides of this longest border in the world, the common sense answer to these questions is no. This rough human wisdom suggests that our leading academics and legal theorists may be getting it wrong. Not just a little wrong. Not just wrong in a few places. But deeply, fundamentally wrong. Perhaps we should insist that they go back to the drawing board and try to get it right.
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Recommendations
1. Recognize that marriage is a social institution, not merely individuals following laws devised by legal professionals. 2. Identify and encourage people going into the field of family law who will seek
to strengthen rather than weaken marriage.

3. A minimum five-year moratorium should be placed on any changes to the laws
affecting the definition of marriage. The purpose of the moratorium is to allow for informed democratic consultation and deliberation.
4. Research into family law should broaden its base and welcome a more interdis-
ciplinary approach to issues of marriage, parenthood, and family. Legal research associations such as the American Law Institute and the Law Commission of Canada should recognize the limits of their competence to reform these fundamental features of ordinary life. Their work should be undertaken in a far more interdisciplinary, exploratory, and collaborative way.
5. Governments should foster more democratic consultation and deliberation on
the question of the role of marriage in society. Broad-based representative commissions should be formed to explore public interest concerns in the area of marriage and family life. These commissions should consist primarily of those affected by changes to the institution of marriage: ordinary citizens, cultural communities, marriage and family life associations, and religious communities, rather than lawyers and academics.
6. Governments and universities should invest in more research on marriage and family life. Research should focus on the following:
Gathering relevant statistical information on national trends and developments in marriage, parenthood and family life; Gathering cross-cultural and trans-national data; Interdisciplinary conferences, research and programs on marriage, parenthood and family life; Research on the impact of diverse family forms on the well-being of children; and Research to track properly the shifting attitudes and behaviors of youth culture in relationship to marriage and pathways to marriage.
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Endnotes 1. John Dewar, Family Law and Its Discontents, International Journal of Law, Policy and the Family 14 (2000): 59-60. 2. Ibid. 3. Douglass C. North, Institutions, Institutional Change, and Economic Performance (New York: Cambridge University Press, 1990a). The new institutionalism in economics, sociology, and social anthropology underlines the critical importance of public norms and rules. For some classic discussions see North as well as Mary C. Brinton and Victor Nee, eds., The New Institutionalism in Sociology (New York: Russell Sage Foundation, 1998); Mary Douglas, How Institutions Think (Syracuse, NY: Syracuse University Press, 1986). 4. Harry Krause, Marriage for the New Millennium: Heterosexual, Same-Sex Or Not At All? Family Law Quarterly 34 (2000): 284-85. 5. Paul Kahn, The Cultural Study of Law (Chicago: University of Chicago Press, 1999), 123-24. 6. Beverly McLachlin, Freedom of Religion and the Rule of Law, in Recognizing Religion in a Secular Society, ed. Douglas Farrow (Montreal, QC and Kingston, ON: McGill-Queens University Press, 2004), 14. See also Katharine T. Bartlett, Re-Expressing Parenthood, in Family, State and Law, vol. 2, ed. Michael D. Freeman (Dartmouth: Ashgate, 1999), 163. 7. William N. Eskridge, Jr., Equality Practice: Civil Unions and the Future of Gay Rights (New York: Routledge, 2002), 154. 8. Martha Fineman, The Autonomy Myth: A Theory of Dependency (New York: The New Press, 2004), 63. 9. One lesson Professor Waaldjik [a leading European gay law theorist] and I would draw [from the experience of same-sex marriage] is that legal recognition of same-sex marriage comes through a step-by-step process. Such a process is sequential and incremental: it proceeds by little steps. Registered partnership laws have not been adopted until a particular country has first decriminalized consensual sodomy and equalized the age of consent for homosexual and heterosexual intercourse; then has adopted laws prohibiting employment and other kinds of discrimination against gay people; and, finally, has provided other kinds of more limited state recognition for same-sex relationships, such as giving legal benefits to or enforcing legal obligations on cohabiting same-sex couples. That the Netherlands has just recognized same-sex marriages was facilitated by its prior recognition of, and successful experience with, registered partnerships. Eskridge, Equality Practice, 153-54. 10. [L]aw cannot liberalize unless public opinion moves, but public attitudes can be influenced by changes in the law. For gay rights, the impasse suggested by this paradox can be ameliorated or broken if the proponents of reform move step by step along a continuum of little reforms. [There are] pragmatic reasons why such a step-by-step process can break the impasse: it permits gradual adjustment of antigay mindsets, slowly empowers gay rights advocates, and can discredit antigay arguments. Ibid., 154. 11. Ibid., 225. Margaret Brinig notes that Canada proceeded along a series of small steps towards legalizing same-sex marriage. See Chapter 6 and Default Rules, in Reconceiving the Family: Critical Reflections on the American Law Institutes Principles of the Law of
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Family Dissolution, ed. Robin Wilson (Cambridge: Cambridge University Press, forthcoming). The same case has also been made for Norway and Scandinavia; see Turid Noack, Cohabitation in Norway: An Accepted and Gradually More Regulated Way of Living, International Journal of Law, Policy and the Family 15 (2001): 102-17. 12. John Rawls, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), 162. 13. John Locke, Second Treatise on Government, chap. VII, sec. 78. 14. Rawls, Justice as Fairness, 162-3. 15. See Maggie Gallagher and Joshua K. Baker, Do Moms and Dads Matter? Evidence from the Social Sciences on Family Structure and the Best Interests of the Child, Margins 4 (2004): 161-180. 16. Kristin Anderson Moore, Susan M. Jekielek, and Carol Emig, Marriage from a Childs Perspective: How Does Family Structure Affect Children and What Can We Do About It? Child Trends Research Brief (Washington, DC: Child Trends, June, 2002), 1. Also available at http://www.childtrends.org/files/MarriageRB602.pdf. For more evidence of the importance of intact families for children see Sandra L. Hoffreth and Kermyt G. Anderson, Are all dads equal? Biology versus marriage as a basis for paternal investment, Journal of Marriage and Family 65, no. 1, (2003): 213-32; and Wendy D. Manning and Kathleen A. Lamb, Adolescent Well-Being in Cohabiting, Married, and Single-Parent Families, Journal of Marriage and Family 65, no. 4, (2003): 876-93. 17. This line of argument is common in evolutionary psychology. For discussions of kin altruism and parental investment see chapter three in Louise Barrett, Robin Dunbar, and John Lycett, Human Evolutionary Psychology (Princeton, NJ: Princeton University Press, 2002); Mary Daly and Margo Wilson, Sex, Evolution and Behavior (Belmont, CA: Wadsworth, 1978). 18. Halpern v. Canada (Attorney General), [2003] 225 D.L.R. (4th) 529 (Can.), par. 130; Goodridge v. Department of Public Health, 798 N.E.2d 941, 961-64 (2003). 19. See Dan Cere, The Experts Story of Courtship (New York: Institute for American Values, 2000), 15-31. 20. See, for example, Linda J. Waite and Maggie Gallagher, The Case for Marriage: Why Married People Are Happier, Healthier and Better-Off Financially (New York: Doubleday, 2000). 21. See David Popenoe and Barbara Dafoe Whitehead, The State of Our Unions: The Social Health of Marriage in America, 2001, (Rutgers, NJ: The National Marriage Project, 2001). 22. Anthony Giddens, The Transformation of Intimacy: Sexuality, Love and Eroticism in Modern Societies (Stanford, CA: Stanford University Press, 1992), 58. 23. John Scanzoni, Karen Polonko, Jay Teachman, and Linda Thompson, The Sexual Bond: Rethinking Families and Close Relationships (Newbury Park, CA: Sage Publications, 1989), 9, 13. 24. One consequence of this flattening of marriage into a close personal relationship is that the public meaning of marriage must be redefined and shaped by the common patterns of same-sex relationships, not the distinctive capacities of opposite-sex ones. The Ontario Court of Appeals was blunt. It stated that the law of marriage needed to be redesigned to meet the needs, capacities and circumstances of same-sex couples, not the needs,
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capacities and circumstances of opposite-sex couples. This view rested on the basis that the purpose and effects of the impugned law must at all times be viewed from the perspective of the claimant. Halpern v. Canada (Attorney General), [2003] 225 D.L.R. (4th) 529 (Can.), par. 91. 25. For a generalized discussion of how institutional frameworks (like scholarly disciplines) make certain kinds of thoughts unthinkable, see Douglas, How Institutions Think (see n. 3). 26. Scanzoni, et al., The Sexual Bond, 9, 13. 27. Julia Wood and Steve Duck, Off the Beaten Track: New Shores for Relationship Research, in Understudied Relationships: Off the Beaten Track, ed. Julia Wood and Steve Duck (Thousand Oaks, CA: Sage, 1995). 28. Scanzoni, et al., The Sexual Bond, 14-24. 29. The European Commission on Family Law is also proposing major legal reforms to harmonize European family law codes. One of its most recent reports is Principles of European Family Law Regarding Divorce and Maintenance between Former Spouses (Antwerp: Intersentia, 2004). 30. The Principles of the Law of Family Dissolution is the work of a select group of legal academics who had enormous autonomy in the development of this report. David Westfall raises some critical concerns about the controlled nature of the consultative process. See Unprincipled Family Dissolution: The American Law Institutes Recommendations for Spousal Support and Division of Property, Harvard Journal of Law and Public Policy 27 (2004): 918-20. 31. American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations (Philadelphia: American Law Institute, 2002), chap. 1, I-III (hereinafter ALI Principles). 32. For example, see the discussion of prohibited factors in the analysis of Criteria for Parenting Plan, ALI Principles, sec. 2.12. 33. Ibid., chap. 1, I.b. 34. Ibid., sec. 2.02, cmt. c. 35. Katharine T. Bartlett, Saving the Family from the Reformers (Brigitte M. Bodenheimer Memorial Lecture on the Family), University of California, Davis Law Review 31 (1998): 817. 36. ALI Principles, chap. 6. 37. Ibid., chap. 1, Overview of Chapter 6 (Domestic Partners). 38. Ibid., sec. 6.03. 39. Ibid., chap. 1, Overview of Chapter 6 (Domestic Partners). 40. Ibid., chap. 1, I.b. 41. Ibid., chap. 1, IV.b. 42. Ibid. 43. In the context of marital failure, however, the word cause has no such meaning, and its use simply masks a moral inquiry with a word pretending a more objective assessment. Some individuals tolerate their spouses drunkenness or adultery and remain in the marriage. Others may seek divorce if their spouse grows fat, or spends long hours in the office. Is the divorce caused by one spouses offensive conduct, or by the others unreasonable intolerance? In deciding that question the court is assessing the parties relative
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moral failings, not the relationship between independent and dependent variables. And the complexity of marital relations of course confounds the inquiry. Ibid., chap. 1, III.a(1). 44. Ibid. 45. Ibid. 46. Law Commission of Canada, Recognizing and Supporting Close Personal Relationships Between Adults (discussion paper) (Ottawa: Law Commission of Canada, 2000), sec. 2(b). 47. Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (Ottawa: Law Commission of Canada, 2001), xxiv-xxv (hereinafter Beyond Conjugality). 48. Brenda Cossman and Bruce Ryder, Gay, Lesbian and Unmarried Heterosexual Couples and the Family Law Act: Accommodating a Diversity of Family Forms (Toronto, ON: Ontario Law Reform Commission, 1993), 5. 49. Beyond Conjugality, xxii-xxiii, 13-15. 50. In the Ontario Superior Court marriage decision, Justice Robert Blair stated that marriage must be open to same-sex couples who live in long-term, committed, relationships marriage-like in everything but name just as it is to heterosexual couples. Halpern v. Canada, 215 D.L.R. (4th) 223 (Can.), par. 32. 51. For example, Eskridges argument for the similarity of same-sex and opposite-sex relationships cites as his authorities the research of close relationship theorists Letitia Anne Peplau and Susan D. Cochrane, A Relationship Perspective on Homosexuality in Homosexuality/Heterosexuality: Concepts of Sexual Orientation, ed. David P. McWhirter (New York: Oxford University Press, 1990. William N. Eskridge, Jr., The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment (New York: Free Press, 1996), 109, fn.6. 52. One consequence of this flattening of marriage into a close personal relationship is that the public meaning of marriage must be redefined and shaped by the common patterns of same-sex relationships, not the distinctive capacities of opposite-sex ones. The Ontario Court of Appeal was blunt. It stated in Halpern that the law of marriage needed to be redesigned to meet the needs, capacities and circumstances of same-sex couples, not the needs, capacities and circumstances of opposite-sex couples (see n. 24). 53. ALI Principles, sec. 6.01. 54. Ibid., chap. 1, Overview of Chapter 6 (Domestic Partners). 55. Ibid., sec. 6.03. Sharing a life together as a couple is characterized by features such as common commitments or promises to one another (oral or written) or representations to others of their relationship, economic interdependence, collaborative life together, evidence that the relationship wrought change in the life of either or both of the parties, responsibilities for each other such as each naming the other as beneficiary, qualitative distinctiveness of the relationship compared to other relationships, emotional or physical intimacy of the relationship, assumption of parental functions toward a child. 56. Molodowich v. Penttinen, [1980] 17 R.F.L. (2d) 376 (Can.). 57. Under sexual and personal behavior Judge Kurisko posed the following questions: Did the parties have sexual relations? If not, why not? Did they maintain an attitude of fidelity to each other? What were their feelings toward each other? Did they communicate on a personal level? Did they eat their meals together? What, if anything, did they do to
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assist each other with problems or during illness? Did they buy gifts for each other on special occasions? Molodowich v. Penttinen, par. 21-27. 58. Macmillan-Dekker v. Dekker [2000] 10 R.F.L. (5th) 352 (Can.), par. 68, quoted in Brenda Cossman and Bruce Ryder, What is Marriage-Like Like? The Irrelevance of Conjugality, Canadian Journal of Family Law 18 (2001): 269, 290. 59. Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554 (Can.), par. 60. In this case an employee was denied bereavement leave based on family status to attend the funeral of the father of his same-sex partner. The majority decided against the complainant. 60. M. v. H., [1999] 2 S.C.R. 3 (Can.), par. 60. This ground-breaking decision extended the right to spousal support to gays and lesbians in same-sex unions. 61. Marsha Garrison, Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligations, University of California, Los Angeles Law Review 52 (2005). 62. Roderick A. Macdonald, All in the Family, Transition Magazine 30, no. 2 (2000), http://www.vifamily.ca/library/transition/302/302.html#1. 63. Miron v. Trudel, [1995] 2 S.C.R. 418 (Can.), par. 105; Nova Scotia vs. Walsh, [2002] 4 S.C.R. 325 (Can.), par. 42. 64. Much research in Canada and Europe combine formal and informal couples in one category. While this may be a justifiable decision for some purposes it has the side effect of making it impossible to discern in those studies whether and how married and cohabiting couples differ. 65. William J. Doherty, et al., Why Marriage Matters: 21 Conclusions from the Social Sciences (New York City: Institute for American Values, 2002), 7-8 (internal citations omitted). 66. Fully three-quarters of children born to cohabiting parents will 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. One reason is that marriage rates for cohabiting couples have been plummeting. In the last decade, the proportion of cohabiting mothers who go on to eventually marry the childs father declined from 57% to 44%. From David Popenoe and Barbara Dafoe Whitehead, Should We Live Together? What Young Adults Need to Know about Cohabitation Before Marriage, 2nd ed. (Piscataway, NJ: National Marriage Project, 2002), 8. They cite Wendy Manning, The Implications of Cohabitation for Childrens WellBeing, in Just Living Together: Implications for Children, Families, and Public Policy, ed. Alan Booth and Ann C. Crouter (Hillsdale, NJ: Lawrence Erlbaum Associates, 2002). 67. James M. Donovan, An Ethical Argument to Restrict Domestic Partnerships to SameSex Couples, Law and Sexuality 8 (1998): 649. 68. Terry Kogan, Competing Approaches to Same-Sex Versus Opposite-Sex, Unmarried Couples in Domestic Partnerships and Ordinances, Brigham Young University Law Review 2001: 1023-44. 69. Jonathan Rauch argues for this approach in Gay Marriage: Why It is Good for Gays, Good for Straights, and Good for America (New York: Henry Holt and Company, 2004). 70. See, for instance, Prime Minister Paul Martins opening speech in favor of the new Civil Marriage Act, House of Commons, Hansard, Feb. 16, 2005. 71. Halpern v. Canada, 215 D.L.R. (4th) 223 (Can.), par. 243. 72. Goodridge, which on November 18, 2003, rendered a four-three decision in favor of same-sex marriage, was the American version of Halpern v. Canada. The quoted phrases
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are drawn from the opinion of Justice Greaney. Goodridge v. Department of Public Health, 798 N.E.2d 941, 968 (2003); Palmore v. Sidoti 466 U.S. 429, 433 (1984). See also the opinion of Justices Marshall, Greaney, Ireland, and Cowin in Opinion to the Senate, 802 N.E.2d 565, 569-72 (2004). 73. Baehr v. Lewin, 74 Haw. 530, 570 (1993). 74. The Courts are not the best equipped to conduct such a balancing exercise, in my opinion. This is not an incremental change in the law. It is a profound change. Although there may be historical examples of the acceptance of same-sex unions, everyone acknowledges that the institution of marriage has been commonly understood and accepted for centuries as the union of a man and a woman. Deep-seated cultural, religious, and socio-political mores have evolved and shapes societys views of family, child-rearing and protection, and couple-hood based upon that heterosexual view of marriage. The apparent simplicity of linguistic change in the wording of a law does not necessarily equate with an incremental change in that law. To say that altering the common law meaning of marriage to include same-sex unions is an incremental change, in my view, is to strip the word incremental of its meaning. Justice Robert Blair in Halpern v. Canada, 215 D.L.R. (4th) 223 (Can.), par. 97-99. 75. For discussion in the popular press, see for example, John Havelock, State should limit role to civil unions, Anchorage (AK) Daily News, July 31, 2004; Editorial, Avoid divisiveness over who marries; Religious bodies should bless holy matrimony; government should protect civil unions, San Antonio (TX) Express-News, Nov. 15, 2004; Michael Kinsley, Abolish Marriage; Lets really get the government out of our bedrooms, Washington Post, July 3, 2003; Deroy Murdock, Stop Licensing Marriage, Scripps Howard News Service, July 10, 2004. 76. Michael Warner, The Trouble With Normal: Sex, Politics and the Ethics of Queer Life (Cambridge, MA: Harvard University Press, 2000). 77. Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2001). 78. Nicholas Bala, Context and Inclusivity in Canadas Evolving Definition of the Family, International Journal of Law, Policy and the Family 16 (2002): 147. 79. See Janet R. Jacobsen and Ann Pelegrini, Love the Sin: Sexual Regulation and the Limits of Tolerance (New York: New York University Press, 2003); Larry C. Backer, Religion as the Language of Discourse of Same Sex Marriage, Capital University Law Review 2002: 221-278. 80. Polyamory means many loves, while polygamy means many marriages. Polyamorous unions of three or more people may or may not involve one or more couples who are married to one another. 81. Some calling for disestablishment include: Paula L. Ettelbrick, Domestic Partnership, Civil Unions, or Marriage: One Size Does Not Fit All, Albany Law Review 64 (2001): 905; Dianne Post, Why Marriage Should Be Abolished, Womens Rights Law Reporter 18 (1997): 283; Patricia A. Cain, Imagine Theres No Marriage, Quinnipiac Law Review 16 (1996): 27; Nancy D. Polikoff, Why Lesbians and Gay Men Should Read Martha Fineman, American University Journal of Gender, Social Policy and Law 8 (1999): 167, 176; Martha Albertson Fineman, The Neutered Mother, the Sexual Family and Other Twentieth-Century Tragedies
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(New York: Routledge, 1995), 270-72; Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not Dismantle the Legal Structure of Gender in Every Marriage, Virginia Law Review 79 (1993): 1535; Jennifer Jaff, Wedding Bell Blues: The Position of Unmarried People in American Law, Arizona Law Review 30 (1988): 207. 82. Halpern v. Canada (Attorney General), [2003] 225 D.L.R. (4th) 529 (Can.), par. 150. 83. Department of Justice Canada, Marriage and Legal Recognition of Same-Sex Unions: A Discussion Paper (discussion paper) (Ottawa: Department of Justice Canada, 2002), http://www.justice.gc.ca/en/dept/pub/mar/mar_e.pdf. 84. Beyond Conjugality, 128. 85. Ibid., 118-120. 86. Ibid., 13, 17. 87. For instance see Cossman and Ryder, What is Marriage-Like Like? (see n. 58). 88. Ibid., 323. 89. Ibid., 326. 90. This tension in the report may be due to the fact that the composition of the report occurred under the leadership of two presidents of the Law Commission. 91. In 1880, the first modern papal encyclical on marriage, On Christian Marriage by Leo XIII, expressed serious concerns about the political usurpation of marriage by the modern state. 92. Julius Grey, Equality Rights Versus the Right to Marriage: Toward the Path of Canadian Compromise, Policy Options (October, 2003): 33. 93. Gillian Douglas, An Introduction to Family Law, Clarendon Law Series (Oxford: Oxford University Press, 2001), 30-31. 94. See http://www.uupa.org. 95. Beyond Conjugality, 133, fn.16. 96. See Rubins Alternative Lifestyles Today in Handbook of Contemporary Families, ed. M. Coleman and L.H. Ganong (Thousand Oaks: Sage Publications, 2004), 32-33. Note that same-sex marriage laws also threaten the dyadic restriction on marriage because in order for same-sex couples to have children without resorting to adoption they must necessarily involve a third person in order to conceive and bear a child. 97. Elizabeth F. Emens, Monogamys Law: Compulsory Monogamy and Polyamorous Existence, New York University Review of Law and Social Change 29 (2005). 98. See Bill C-38, Civil Marriage Act, 1st sess., 38th Parliament (2005), Consequential Amendments. 99. Beyond Conjugality, xxiv. 100. Ibid., 129. 101. Ibid., xxiv. 102. ALI Principles, sec. 2.08, cmt b. 103. Bartlett, Re-Expressing Parenthood, 173 (see n. 6). 104. ALI Principles, 2.02(c). 105. Bartlett, Saving the Family from the Reformers, 852 (see n. 35). 106. Ibid., 853. 107. ALI Principles, 1.01. 108. Ibid., 2.02, reporters note a.
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109. Ibid. 110. Ibid., 2.02(b). 111. Ibid., 2.12(f). 112. Ibid., 2.03(1). The legal category will ordinarily include biological parents, whether or not they are or ever have been married to each other, and adoptive parents. Ibid., 2.03, cmt. a. 113. Ibid., 2.03(1)(b)(iii). 114. Ibid., 2.03(1)(b); ibid., cmt. b. 115. Ibid., 2.03. 116. Helen Rhoades, The Rise and Rise of Shared Parenting Laws: A Critical Perspective, Canadian Journal of Family Law 19 (2002): 107-108. 117. Studies arguing for the deconstruction of the concept of natural parent and kinship relations include: Sara Franklin and Susan McKinnon, eds., Relative Values: Reconfiguring Kinship Studies (Durham, NC: Duke University Press, 2001); Judith Butler, Is Kinship Always Heterosexual? in Undoing Gender (New York: Routledge, 2004), 102-130. 118. Most people are familiar with the concept of a surrogate mother, a woman who carries a baby which is genetically her child with plans to give the baby to another person or couple after birth. A newer form of surrogacy is the gestational carrier who carries a fetus created by using another womans egg. Infertile couples might prefer gestational carriers because of the possibility of having a baby that is genetically their own and/or the lower perceived risk that the surrogate will change her mind and keep the child. 119. Jonathan Herring, Family Law (London: Longman, 2001), 264, 305f. 120. Richard F. Storrow, Parenthood by Pure Intention: Assisted Reproduction and the Functional Approach to Parentage, Hastings Law Journal 53 (2002): 597-679; Janet L. Dolgin, Choice, Tradition, and the New Genetics: The Fragmentation of the Ideology of Family, Connecticut Law Review 32 (2000): 520-566. 121. Storrow, Parenthood by Pure Intention, 628. 122. Current legislation in Quebec dealing with sperm donation places the rights of adults over the rights of children to know their biological parents. 123. This right also implies that children should not to be the subjects or products of experimental reproductive technologies that may have long-term effects on life, health, and identity that remain as yet unknown. 124. William N. Eskridge Jr., Gaylaw: Challenging Apartheid in the Closet (Cambridge, MA: Harvard University Press, 1999), 11. 125. Robin Wilson, Children at Risk: The Sexual Exploitation of Female Children after Divorce, Cornell Law Review 86 (2001) 251, 256. 126. June Carbone, From Partners to Parents: The Second Revolution in Family Law (New York: Columbia University Press, 2000), 227 127. See F. C. DeCostes insightful discussion in The Halpern Transformation: SameSex Marriage, Civil Society, and the Limits of Liberal Law, Alberta Law Review 41 (2003): 619.
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About the Institute for American Values The Institute for American Values is a nonpartisan organization dedicated to strengthening families and civil society in the U.S. and the world. The Institute brings together approximately 100 leading scholars from across the human sciences and across the political spectrum for interdisciplinary deliberation, collaborative research, and joint public statements on the challenges facing families and civil society. In all of its work, the Institute seeks to bring fresh analyses and new research to the attention of policy makers in government, opinion makers in the media, and decision makers in the private sector.
About the Institute for Marriage and Public Policy The Institute for Marriage and Public Policy, founded in 2003, is a private, nonpartisan organization. iMAPPs unique mission is high quality research and public education on ways that law and public policy can strengthen marriage as a social institution.
About the Institute for the Study of Marriage, Law and Culture The Institute for the Study of Marriage, Law and Culture is a nonpartisan, nonprofit Canadian association for research and study of current trends and developments in marriage and family. The Institute draws together scholars from different disciplines and seeks to stimulate ongoing research by providing a forum for innovative and informed dialogue for scholars, policy makers and the public at large.
Institute for American Values
Institute for Marriage and Public Policy 1413 K Street, NW Suite 1000 Washington, D.C. 20005 Tel: (202) 216-9430 Fax: (202) 216-9431 info@imapp.org www.imapp.org
Institute for the Study of Marriage, Law and Culture 3484, Peel Street Montreal, Quebec H3A 1W8 Canada Tel: (514) 862-4105 Fax: (514) 398-2546 inquiries@marriageinstitute.ca www.marriageinstitute.ca
1841 Broadway Suite 211 New York, NY 10023 Tel: (212) 246-3942 Fax: (212) 541-6665 info@americanvalues.org www.americanvalues.org
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THOMAS C. PERRY, ISB #7203 CALLY A. YOUNGER, ISB # 8987 Office of the Governor P.O. Box 83720 Boise, ID 83720-0034 Telephone: (208) 334-2100 Facsimile: (208) 334-3454 Attorneys for Defendant, Governor C.L. Butch Otter
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO SUSAN LATTA and TRACI EHLERS, LORI WATSEN and SHARENE WATSEN, SHELIA ROBERTSON and ANDREA ALTMAYER, AMBER BEIERLE and RACHAEL ROBERTSON, ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) C.L. (BUTCH) OTTER, as Governor of the State ) of Idaho, in his official capacity, and ) CHRISTOPHER RICH, as Recorder of Ada ) County, Idaho, in his official capacity, ) ) Defendants, ) ) and ) ) STATE OF IDAHO, ) ) Defendant-Intervenor. ) )
Case No. 1:13-cv-00482-CWD
DEFENDANT GOVERNOR OTTERS OBJECTIONS TO STATEMENT OF MATERIAL FACTS IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT (Dkt. No. 45)
Defendant Governor Otter objects to Statement of Material Facts in Support of Plaintiffs Motion for Summary Judgment (Dkt. No. 45) (Plaintiffs Statement), as follows: A proper statement of material facts in support of a motion for summary judgment must contain only statements of adjudicative facts that are material to resolution of the motion. It -1-
must not include conclusions of law, facts that are irrelevant and therefore, ipso facto, not material to resolution of the motion, or assertions of legislative facts. Plaintiffs Statement, however, is replete with just such objectionable assertions. 1. All references to supposed harms to the Plaintiffs or children connected to them are irrelevant to the extent they are made in support of any claim other than the MorenoRomer-Windsor claim that Idahos Marriage Laws are the product solely of animus, that is, of a bare desire to harm an unpopular minority. As demonstrated in Defendant Governor Otters Response in Opposition to Plaintiffs Motion for Summary Judgment filed today (Governors Response) at page 39, such supposed harms are irrelevant to any other claim Plaintiffs may be asserting. 2. All references to Idahos Marriage Laws demeaning or harming Plaintiffs or children connected to them constitute conclusions of law or, at best, conclusions of mixed law and fact. (Although the different references to Plaintiffs feeling demeaned or harmed avoid this objection, they fall within Objection # 1 above.) 3. All references to dignity (no matter how denominated), including supposed dignitary harms, are irrelevant because, as shown in the Governors Response at pages 23-24, there is no free-standing federal constitutional right to dignity. Plaintiffs Complaint invokes only (because there are no other rights it can correctly invoke) the federal constitutional rights to equal protection of the laws and to liberty as historically preserved and protected in our Nation. 4. Paragraphs 9, 10, 11, 22, 25, 27, 28, 29, 30, 32, 33, 34, 43, 44, 45, 57, and 59 assert conclusions of law in one or both of two ways: one, saying what the legal consequences
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of certain facts are or, two, saying what the consequences would be if the law were different in certain ways. 5. All references to federal benefits of any sort are irrelevant because Plaintiffs are not challenging the constitutionality of any federal benefit program. It is federal law, not Idaho law, that is the legal cause of the denial of any federal benefits, and it is within the power of the federal government to change the law to allow such federal benefits to flow without regard to Idaho law. Indeed, federal law appears to be changing in just that way. 6. Paragraph 52s allegations regarding the termination of a particular Plaintiffs employment in the private sector are irrelevant because no Plaintiff is making an employment-related claim and Idaho law is not the legal cause of the private employers supposed course of conduct. 7. Paragraphs 11 and 41 use possessive pronouns in connection with grandchildren and child in a way appearing to be, either in whole or in part, unconnected to established law, whether state or federal. ************** Governor Otter objects to Plaintiffs Statement on the grounds set forth. Dated: March 20, 2014 By /s/ Thomas C. Perry THOMAS C. PERRY Counsel to the Governor
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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 20, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Deborah A. Ferguson d@fergusonlawmediation.com Craig Harrison Durham craig@chdlawoffice.com Shannon P. Minter sminter@nclrights.org Christopher F. Stoll cstoll@nclrights.org W. Scott Zanzig scott.zanzig@ag.idaho.gov Clay R. Smith clay.smith@ag.idaho.gov
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In The United States District Court For The District of Idaho

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See Stewart, Judicial Redefinition, supra note 6, at 6769. 18

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All see a big difference between

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See Addendum to Governors Opening Brief at A-1 to A-7. 38

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/s/ Thomas C. Perry THOMAS C. PERRY Counsel to the Governor

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/s/ Thomas C. Perry THOMAS C. PERRY Counsel to the Governor

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Case No. 1:13-cv-00482-CWD

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SUPPLEMENTAL APPENDIX TABLE OF CONTENTS

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DECLARATION OF THOMAS C. PERRY

/s/ Thomas C. Perry Thomas C. Perry