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The Attack on Marriage As the Union of a Man and a Woman

 

 

Lynn D. Wardle, J.D.[1]

  BIO

Remarks to The World Congress of Families IV Warsaw, Poland, May 2007

Introduction: Like Moishe the Beadle

“They called him Moishe the Beadle . . . .”[2] 

With those word, Elie Wiesel begins Night, the powerful autobiographical account of how he, his family, and their entire Jewish community went from living freely in the small Hungarian town of Sighet, to incarceration, suffering, and death in terrible Nazi concentration camps during World War II.  One of the Jews in the village knew of the imminent danger and tried to warn his neighbors.  That man was Moishe the Beadle.  In tribute to him, the Nobel-prize-honored Wiesel records Moishe’s name in the first line of his book, as the first of all persons he  mentions.

Moishe the Beadle and the other foreign Jews who lived in Sighet had been arrested and deported in crammed cattle trucks, but months later Moishe secretly returned to the village with a fantastic tale of how the Gestapo had stopped the trucks in a distant forest, made the Jews dig their own graves, and shot them all, including Moishe who miraculously had survived.  Wiesel remembers:

Day after day, night after night, he went from one Jewish house to the next, telling his story and that of Malka, the young girl who lay dying for three days, and that of Tobie, the tailor who begged to die before his sons were killed.

  . . . But people not only refused to believe his tales, they refused to listen. . . .

  As for Moishe, he wept and pleaded:

  Jews, listen to me! That’s all I ask of you. No money.  No pity. Just listen to me!” he kept shouting in synagogue, between the prayer at dusk and the evening prayer.

  Even I [Wiesel admits] did not believe him.[3]

As Moishe had warned, the Jews in the peaceful village of Sighet were eventually rounded up, forced to live in a ghetto,[4] then transported to concentration camps, where some were selected for immediate extermination, and others were brutally worked to death.  Few survived.

As a Family Law professor concerned about the dangers of legalizing same-sex marriage, I sometimes feel like Moishe the Beadle.  During the past ten years I have spoken, debated, or lectured at more than 20 American law schools about same-sex marriage.  I always begin my presentations by asking the audience, mostly law students, where they stand on the issue of legalizing same-sex marriage.  Over ten years, the audience responses have changed.  While some students today express opposition to same-sex marriage, at most American law schools, the number of students favoring legalization of same-sex marriage now is much larger than the number opposing it.

For example, I participated in a panel discussion last October at a respected university’s  law school in New York City.  It is sponsored by a prominent church.  Yet, over 90% of the audience (mostly students) raised their hands in support of legalizing same-sex marriage; while less than five percent (5%) of the audience raised their hands as opposing same-sex marriage. 

I do not blame those young law students, for they are bombarded relentlessly by their professors, peers, and the popular media with propaganda that legalizing same-sex marriage is fair, egalitarian, just, and harmless.  If anyone says children, families and society will be hurt, they are treated like Moishe the Beadle was treated –  brushed aside, ignored, or ridiculed.

There is a Global Movement to Legalize Same-Sex Marriage

There is a global movement to legalize same-sex marriage and other marriage-equivalent domestic relations.  As Appendix 1 shows, as late as 1985, no nation on earth permitted same-sex couples to marry or had created marriage-equivalent legal unions for them.  In fact, in the entire history of the world, no country had ever before allowed same-sex marriage. When the new millennium dawned in 2000, same-sex marriage was not legal in any nation on earth, and domestic partnerships were recognized in only one nation.  Today,  however, five nations have redefined marriage to allow same-sex couples to marry.  Fifteen nations (including two with same-sex marriage) have created same-sex “marriage-lite” giving marriage-equivalent legal status and most or all of the marital benefits to registered same-sex couples.  Appendix 2 shows the current legal status of marriage as the union of a man and a woman the United States and the World.

The Same-Sex Marriage Movement Threatens the Institution of Marriage, Children, and Families and Society

 A. The Public Interest in the Social Institution of Conjugal Marriage

Helping people to see that legalizing same-sex marriage or marriage-equivalent domestic relationships is an attack on marriage is not easy.  The harm it causes is not like a broken bone sticking through the skin or blood pouring from a severed artery.  It is more gradual and subtle.  It is like the dangers of smoking – the damage is not obvious at first, and by the time people realize that smoking is harmful to them, irreversible damage has often been done (they may have cancer, emphesema, heart attacks, or strokes). 

It is useful to begin by explaining that marriage is not merely a private matter, because there are so many important public, social consequences.  It is a public institution, a public status, with public benefits.[5]  Marriage is carefully defined and regulated by the law because the public has a huge interest in protecting this basic social institution.  People are vulnerable in marriages, and when marriages fail, society must pick up the pieces and the public incurs social costs such as for increased mental health treatment, increased medical services, increased juvenile delinquency, impaired education, and reduced labor productivity.  

How marriage is defined sends signals to and reflects common understandings about the expectations of the relationship.  Keeping those signals clear is critical to protect the vulnerable, including children, adults who invest a large part of their lives in families, and persons who depend on the care given by families.

Legalizing same-sex marriage will drain marriage of the social meaning it now has.  Marriage links not only men with women, but parents with children.  Legalizing same-sex marriage obscures that linkage, and weakens the message connecting marriage with spousal and parental responsibility. This is why former California Governor Pete Wilson said: “Government policy ought not to discourage marriage by offering a substitute relationship that demands much less and provides much less than is needed by children and ultimately much less than is needed by society.”[6]  

Marriage is more than a mere “word” or “piece of paper.”[7]  It is the oldest social institution in the world; it is literally a pre-legal, pre-state institution.  Thus, merely calling the union of  two men or two women a marriage does not make it so. It is like the story attributed to Abraham Lincoln: he is said to have once asked how many legs a dog would have if you counted a tail as a leg.  To the response "five legs," Lincoln said, "No; calling a tail a leg doesn't make it a leg."[8]

If same-sex marriage is legalized on the principle of personal choice, there is no principled basis to deny those who want to call incestuous relationships “marriages,” or polygamous relationshps marriages, or polyamorous unions “marriages.”

Marriage involves the complementary, conjugal union of a man and a woman. As Supreme Court Justice Ruth Bader Ginsburg wrote in a famous decision:  “Physical differences between men and women. . . are enduring: ‘The two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of  both.’”[9]

Marriage establishes the moral core of the family and the moral baseline and standards for society in many ways.  “Marriage is a society's cultural infrastructure . . . .”[10]   In marriage and family, the individual acquires his core kinshp identity.  Without a solid family identity, many persons struggle and some turn to gangs, and extremist movements as a substitute for family identity.[11] In conjugal marriage and the marital family most persons learn the most poignant lessons about how to live in meaningful relationships.[12]  Marriage is not only the most critical bridge and bonding connection in society, it is the instrument of the most important moral transformation of individuals.  Marriage connects us as individuals from strangers into kin, from men and women into husbands and wives, from persons of separate generations into families. 

Marriage cultivates a morality of love and sacrifice. In conjugal marriage we learn through practice to subordinate self-interest to service, to sacrifice for the welfare of others, how to nurture, give, and express love, how to forgive and be one with another (who at times seems so different, even hostile, to our interests, needs and goals). And societies for ages have channeled sexual relations into conjugal marriage, because married couples enjoy the most healthy,[13] most satisfying,[14] and most socially-beneficial sexual relations.[15] 

Same-sex relationships differ in profound ways in all of these critical aspects.

 B. What’s the Harm?

Those who advocate legalizing same-sex marriage argue that “the sky did not fall in The Netherlands or Canada or Massachusetts when they legalized same–sex marriage” a few years ago.  This is an attempt to switch the burden of proof about harm to those who defend marriage rather than those who are proposing a radical change. This argument diverts attention; the enduring harms of same-sex marriage become evident over decades, not overnight. It will take as long to clearly document the detrimental consequences of legalizing same-sex marriage, just at it took to document clearly the harm of unilateral, no-fault divorce on demand which many American states adopted 30-35 years ago.

Already we can identify some harms. At this early stage, as often in social science research, the evidence of harm is correlational not causational.  One of the best summaries of such evidence comes in a book published recently by David Blankenhorn, entitled The Future of Marriage.[16] Using a poll of data reporting interviews with 50,000 adults in 35 nations, Blankenhorn created four categories of countries according to their laws regarding same-sex unions and analyzed attitudes towards marriage.  He reports:

The correlations are strong. Support for marriage is by far the weakest in countries with same-sex marriage. The countries with marriage-like civil unions show significantly more support for marriage. The two countries with only regional recognition of gay marriage (Australia and the United States) do better still on these support-for-marriage measurements, and those without either gay marriage or marriage-like civil unions do best of all.[17]

In nations without gay marriage, people are twice to say married people are happier than in nations with gay marriage, and nearly twice as likely to say that people with children ought to marry.[18]  Performing a similar analysis on data from the World Values Survey produced similar results.  These two data pools show a stair-step correlation: support for marriage is weakest in nations that have legalized same-sex marriage, stronger in nations that have legalized marriage-equivalent civil unions or partnerships, stronger again in nations that have only a few jurisdictions where same-sex unions are is legalized, and strongest by far in nations that do not recognize either same-sex marriage or civil unions. [19] 

~     Legalizing same-sex marriage will change the core meaning and moral message of the social institution of marriage through “the transformative power of inclusion.”  When same-sex marriage is legalized, the moral qualities and characteristics of homosexual relations and lifestyles will become part of, and will have some transformative effect upon the qualities and characteristics of the institution of conjugal marriage. That modification of marriage to make it more like gay-relations will cause serious harm to society, families, and individuals.

The morality and behavioral expectations of gays and lebsians differ markedly from married men and women.  For example, promiscuity, infidelity, multiple sexual partners, and dangerous sexual practices are the behavioral norms among gay couples (and also, to a lesser extent, lesbian couples), rather than monogamy and sexual self-control which are the norms fostered by and nurtured in heterosexual marriages.

For example, a study by Dutch AIDs researchers, published in 2003 in the journal AIDS, reported on the number of partners among Amsterdam’s homosexual population.[20]  They found:

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

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

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

- The average duration of committed relationships among gay steady partners was 1.5 years. [21] 

American researchers Bell and Weinberg reported that 43 percent of white male homosexuals had sex with 500 or more partners, with 28 percent having one thousand or more sex partners.[22]   A more recent study of 2,583 older sexually active gay men reported that “the modal range for number of sexual partners ever . . . was 101-500,” while 10.2 percent to 15.7 percent had between 501 and 1,000 partners, and another 10.2 percent to 15.7 percent reported having had more than one thousand sexual partners in their lifetime.[23]  Kirk and Madsen reported in their that “the cheating ratio of ‘married’ gay males, given enough time, approaches 100%. . . . Many gay lovers, bowing to the inevitable, agree to an ‘open relationship,’ for which there are as many sets of ground rules as there are couples”[24]

A study published in 2006, of same-sex registered partnerships in Norway and Sweden, noted that significant problems with stability of the relationship, and significantly higher rates of breakup.  The divorce-risk levels were about 50% higher for registered gay men partnerships than for comparable heterosexual couples, and controlling for variables, the risk of divorce was twice as high for lesbian couples as it was for gay men couples. [25]  Another study of Swedish registered partnerships found that gay male couples were fifty percent more likely to divorce than married heterosexual couples, while lesbian couples were over 150 percent more likely to divorce than heterosexual couples.[26] Controlling for variables, gay couples were 35 percent and lesbian couples 200 percent more likely to divorce than heterosexual couples.[27]

Giving formal marital equivalent status and benefits to homosexual couples does not change their  behavior significantly.  A study of Civil Unions in Vermont reported that gay men both in and not in civil unions had nearly four times the rate of infidelity (approximately 60%) as married heterosexual men (15.2%), and the difference in infidelity rates between gay men in a civil union and those not in a civil union was less than three percent (2.8%).[28]  Likewise, lesbian couples both in and not in civil unions had much higher rates of meaningful extra-relationship affairs than women in heterosexual marriages of having had a (4.7% and 3.0% compared to 0.0%).[29]  Legal marriage-like status did not significantly reduce lesbi-gay sexual irresponsibility.

Also, the expectation of fidelity that came with the relationship commitment was drastically different for conjugally married men and women that it was for gays and lesbians in formal and non-registered same-sex relationships. About 50% more lesbians both in and not in Civil Unions in Vermont had decided that extra-relationship sex was acceptable than married women, and for gay men both in civil unions and not in civil unions it was from 1250% to 1400% higher than for men in conjugal marriages (40.3% and 49.5% compared to 3.5%).[30] 

Of course, gay male homosexual sex is the primary means of transmission of AIDS disease in the United States and a dominant transmission method worldwide. [31]  AIDS is estimated to have killed over 25 million people worldwide, “making it one of the most destructive epidemics in recorded history,”[32] and fulfilling the ominous prediction made in 1987 by the Secretary of Health and Human Services, Otis R. Bowen, that the disease could make earlier epidemics, such as bubonic plague in Europe, smallpox, and typhoid, “pale in comparison.”[33]  AIDS is not the only sexually transmitted disease or public health problem with extremely disproportionate incidence in homosexual men.  Doctors who treat homosexual men for diseases now  look for at least fifteen common sexually related afflictions besides HIV/AIDS, that are not common in heterosexual men.[34] 

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

Same-sex marriage undermines parenting and child-rearing.  Every child deserves to be raised by his or her mother and father.  While unwed birth and divorce impair that right for some children of conjugal unions, same-sex marriage guarantees that all children who are born during or raised in such unions will be deprived totally of this fundamental moral right.  Further, the linkage between responsible procreation and parenting is weakened when marriage is redefined to allow gay unions that absolutely are incapable of procreation.  Also, the co-parenting message of marriage is weakened when marriage is redefined to include relations among same-sex couples that are designed for sexual pleasure and lack the ability to co-parent.[35] 

Legalizing same-sex marriage will instantly transform the meaning of marriage, spouse, husband, wife, parent, child and by that redefinition will profoundly influence the meaning of public education, school curriculum, civil rights, family, inheritance, intimacy, relations, public behavior, privacy, disclosures, security, accommodation, filings, custody, guardianship, visitation, reasonable conduct, medical treatment, preferences, privileges, rights, duties, etc. 

Thus, the attempt to legalize same-sex marriage or give equivalent legal status and benefits to same-sex couples constitutes a very real and dangerous attack upon the institution of conjugal marriage.  Redefining marriage to include homosexual couples will alter the behavioral characteristics, social expectations, and moral message of our most basic social institution.

 C. Legalizing Same-Sex Marriage Will Endanger Civil Rights

Legalizing same-sex marriage will undermine the civil rights of those who do not approve of or who oppose same-sex marriage.  Gay marriage supporters argue  SEQ CHAPTER \h \r 1that it is a basic right or matter of equality, and that those who oppose same-sex marriage, like those who oppose inter-racial marriage, are simply bigots.[36]  If same-sex marriage becomes law, that principle becomes the law.  Opposition to same-sex marriage may be deemed “invidious discrimination” and punished. Public schools, teachers, administrators, adoption agencies, psychologists, social workers, marriage counselors, fertility experts, ART clinics, religiously-affiliated schools, and social-service agencies and workers who do not support same-sex marriage will be branded “bigots.” They will face civil liability, job discrimination, and be forced to conform or lose government contracts, government employment, government licensing, and tax and other benefits.  The persecutions of parents, teachers, other public employees, and church-affiliated adoption agencies in Massachusetts in just three years since same-sex marriage was legalized there shows the kind of harms that can be expected.[37]

Marriage is one of the most important concerns of religion.  It is also a critical element in hundreds of civil laws.  Changing the core definition of marriage in the law will lead to clashes between law and religion. Religious organizations may be compelled to provide support for and service for same-sex married couples or be punished for not doing so. Civil liability or exclusion from government benefits may be imposed on religions and religious believers that decline to accommodate same-sex marriage.

From soup kitchens, to homeless shelters, to hospitals, to social services religious organizations provide a variety of services to the public and participate in many public service programs that may be shut down or censored if they do not accommodate same-sex marriage.[38]  Religious universities have been forced to provide housing to gay and lesbian couples in violation of core religious principles,[39] and shelters may be similarly treated.

In Massachusetts since same-sex marriage has been legalized Boston Catholic Charities, which provided adoption services to Catholic families for a century had to shut down because a law required all adoption agencies to place children with gays and lesbians, in violation of the strong moral principles of the Church.[40]  Now the UK has adopted the same kind of law threatening Catholic adoption services in that nation. [41] In California, public non-discrimination laws were used to force a Protestant adoption agency to provide adoption services to lesbian couples,[42] and a suit is pending against a clinic whose Catholic doctor declined assisted reproduction services to a lesbian.[43]

The Catholic Church’s Georgetown University was required to allow the Gay Rights Coalition and their programs to promote homosexual lifestyle with the same access to facilities and the same university support, resources and services as it provides to its own church-doctrine-supporting groups.[44] 

In California, which has given same-sex partnerships the same rights as marriage, Catholic Charities was required to violate its own core religious principles and provide contraceptives in health insurance coverage, or to provide no benefits at all.[45]

In Canada, the Knights of Columbus was held liable and forced to pay damages by the British Columbia Human Rights Commission after it cancelled (very politely, promptly) rental of its hall for a marriage celebration, when it learned that it was for a lesbian wedding.[46] In the United States, the Boy Scouts who require their members to be “morally straight” have been denied privileges and the use of public facilities and lands.[47]

Since hospital are regulated public institutions, church-owned hospitals and teaching clinics may be forced to offer procedures (like sex-change) and teaching (about gay lifestyle) that violate church doctrines.  In the United States, this has occurred in the abortion context, so we must expect it to occur with same-sex marriage, also.[48]

Educators and schools are vulnerable.  Religious schools that refuse to approve, subsidize, perform or endorse SSM could be lose access to public facilities, programs, and tax exemption (even be prosecuted).[49] In Massachusetts since same-sex marriage has been legalized there already have been numerous controversies about curriculum, assemblies, classes, clubs, and parents’ rights to protect their children from exposure to gay propoganda.[50]  In British Columbia, Canada, the government accrediting agency denied accreditation to Trinity Western University, sponsored by the Evangelical Free Church of Canada, for its Teacher Training Program because the school requires students to sign an honor code manifesting their belief in Bible verses that condemn homosexual behavior as immoral, and the provincial supreme court affirmed.[51] 

Free speech rights have already been abused.  In Sweden Pentacostal Pastor Ake Green in Sweden was prosecuted, initially convicted, and forced through years of litigation for preaching from the Bible against homosexual relations.[52]  Similar cases have been reported in Canada and England.[53]  In Ireland, during public debate over legalizing same-sex unions, the Irish Council for Civil Liberties warned that Catholic Bishops and clergy who distributed a Vatican publication opposing homosexual relations could be prosecuted for violating a hate speech act.[54]

Opportunity for a Global Marriage Renaissance Movement to Protect the Institution of Marriage

I have described some of the serious dangers of the growing movement to legalize same-sex marriage and equivalent relations in the world today.  However, the future is not bleak.  For simultaneously, we are seeing signs of a revival of interest in protecting marriage.  We can see the early stages of what may become a renaissance of the institution of conjugal marriage and marital families.  Time and space do not prevent a full development of the evidence of this promising development, but five examples may suffice to illustrate the point.

First, most young people today yearn to have a good marriage, and a marital family.  More young people than ever before want to have jobs and lifestyles that will allow them to spend time with, enjoying, their families.  Young people are worried about marital instability, and many approach marriage more seriously, with a greater commitment to make their marriage succeed than in prior generations.[55] 

Second, there even are some indications of greater interest in conjugal marriages in some nations where same-sex marriage has been legalized.[56] Perhaps one short-term reaction to the legalization of same-sex marriage is the shock effect produces a temporary appreciation of the value of the institution of conjugal marriage.  The public awakening caused by the legalization of same-sex marriage provides a golden short-term opportunity for a counter-movement to develop.

Third, many nations in the world clearly reject same-sex marriage.  While the regulation of marriage is normally not a concern of Constitution drafters, the national constitutions of thirty-two nations already contain explicit provisions that clearly define marriage as the union of a man and a woman, as Appendix 3 shows.  In the USA, statutes ban same-sex marriage in 44 states, and constitutional amendments forbid same-sex marriage in (27) most of the states.  

Fourth, the emerging influence of the southern hemisphere in world affairs holds some potential to revitalize conjugal marriage.  For example, the strong reaction of the African (and other) churches in the Anglican communion has had some positive impact to curtail the radical policies about same-sex unions promoted by branches of that Church in affluent North America and Western Europe.[57] Likewise, all major branches of Islam forbid same-sex marriage as do the all the nations (nearly sixty nations) where those people have dominant political influence[58]

Fifth, the incorporation into the European Union of the new democracies of central and eastern Europe is bringing into the “Old Europe” some promising values of the “New Europe,” including traditional views about marriage and families.  For example, Eurostat 2005 shows that the marriage rate is higher in the “New Europe” than in the “Old Europe”.[59]  Also, the practice of delaying marriage in Central and Eastern Europe is less pronounced where, in 2000, the median age of marriage was approximately 24 years old.[60]  The status of same-sex marriage and marriage-equivalent relations in eleven nations of Central and Eastern Europe is revealing.  In none is same-sex marriage allowed; in only two (Slovenia and Germany) are same-sex unions given status comparable to marriage; in only one of the eleven (Germany, an “Old Europe” nations) may gay and lesbian couples adopt children.[61] Five nations in Central and Eastern Europe have constitutions that explicitly define marriage as the unions of a man and a woman.[62]  The 2003 European Omnibus Survey (EOS) based on interviews with over 15,000 persons living in 30 European countries reported that 55% of persons from the “Old Europe” nations opposed the authorization of adoption by homosexual couples, while 76% of the population surveyed in the nations of “New Europe”  opposed legalization of gay adoptions.[63] 

Thus, there are signs of a renaissance of marriage in the world.  It is Spring in the seasons of the world, and we have the opportunity to revitalize marriage if we will.

Conclusion: We Must All Speak Up and Constantly Defend Marriage

The importance of giving persuasive warnings is illustrated by Hurricane Katrina.  In  August, 2005, Hurricane Katrina hit the Gulf Coast of America leaving over 1,800 people dead and billions of dollars of property damage in New Orleans and other low-lying coastal areas.[64] As the hurricane hit, a new Physical Science 100 textbook was being printed for use by students at Brigham Young University. One paragraph reads:

Much of the city of New Orleans was built on the lowest part of the Mississippi Flood Plain right where this great river empties into the Gulf of Mexico. Much of the city is actually several feet below sea level, while the river flows through it in a channel 10 to 15 feet above sea level.  This is a disaster waiting to happen.  At some point in the future the system of levees and dikes that protect New Orleans will be unable to hold back the pressures of a particularly large springtime flow or perhaps a wave surge caused by a hurricane will overwhelm the city=s dikes.  Whatever the natural event, if New Orleans river controls are overcome an enormous amount of damage and even some loss of life will occur.[65]

The author of that section told me that his description of a Adisaster waiting to happen@ at New Orleans was not uncommon. Geologists had been warning of the dangers for many years.  Sadly, like Moishe the Beadle, the warnings were ignored by governments leaders in New Orleans, in Louisiana, in the Army Corps of Engineers, and in FEMA. The results were tragic.  

One of our responsibilities as parents, citizens, and especially scholars is to warn of dangers, to find where the levees and dikes need to be fixed or raised, and warn where possible floods and wave surges may threaten loss of things we value.  We value marriage.  While some people think that same-sex marriage is quite harmless, just the tide of individual liberty rising, I see it as a disaster in the making, as one critical place where the levees need to reinforced.

Although Elie Wiesel was one of Jews who refused to believe the warnings of Moishe the Beadle, yet he remembered gratefully Moishe’s attempt to warn the people.  In his Nobel Peace Prize Acceptance Speech in 1986, Wiesel recalled his experience, and declared:  “I swore never to be silent . . . . We must take sides.  Neutrality helps the oppressor, never the victim.  Silence encourages the tormentor . . . .”[66]  We too must speak up and get involved.

In his book Standing for Something, the President of the Church of Jesus Christ of Latter-day Saints, Gordon B. Hinckley, expressed it well when he wrote:

“We go to great lengths to preserve historical buildings and sites in our cities.  We need to apply the same fervor to preserving the most ancient and sacred of institutions – the family.[67]

He said:

What we desperately need today on all fronts . . . are leaders, men and women who are willing to stand for something.  We need people . . . who are willing to stand up for decency, truth, integrity, morality, and law and order . . . even when it is unpopular to do so – perhaps especially when it is unpopular to do so.

    . . . .

. . . Never before, at least not in our generation, have the forces of evil been so blatant, so brazen, so aggressive as they are at the present time. . . .

. . . .

We are involved in an intense battle.  It is a battle between right and wrong, . . . . [W]e desperately need men and women who, in their individual spheres of influence, will stand for truth in a world of sophistry. . . .   We need moral men and women, people who stand on principle, to be involved in the political process. . . .

  . . . . The weight of our stance may be enough to tip the scales in the direction of truth and right. [68]

Elie Wiesel ended his Nobel speech stating:  “There is so much to be done, there is so much that can be done.  One person – a Raoul Wallenberg, an Albert Schweitzer, a Martin Luther King, Jr. – one person of integrity can make a difference, a different of life and death.”[69]

I conclude on that point, too.  There is much to be done.  The naďve young law students in America and around the world will someday be the lawmakers and judges and leaders of nations.  Unless we persuade them now of the dangers of legalizing same-sex marriage, then they will naively adopt laws and policies that will cause tragic consequences. 

As Wiesel said, one person of integrity and commitment can make a huge difference in his or her family, community, school, profession, or nation. We all can make a difference on the issue of same-sex marriage.  We can stand up and defend the institution of marriage.  The task we face is not for summer soldiers or weekend warriors who are willing to work for a season, then quit.  We must realize that we have the opportunity to initiate a renaissance of marriage and the family, and that will take decades, not days to accomplish.  So we must enlist for the long term.  As Mormon Church President Gordon B, Hinckley wrote:

“We cannot effect a turnaround in a day or a month or a year.  But with enough effort, we can begin a turnaround within a generation, and accomplish wonders within two generations – a period of time that is not very long in the history of humanity.[70]

May all of us speak up stand against legalizing same-sex marriage.  May we all be as dedicated in warning about the dangers of same-sex marriage as Moishe the Beadle was about warning of the dangers facing his people, and may God grant that, over time, we may witness a real renaissance of marriage.

Thank you.

 

Appendix 1: Global Progress of Same-Sex Marriage, and Marriage Equivalent Civil Unions or Partnerships, 1985-2007

YEAR

Same-Sex Marriage

Same-Sex Marriage-Eqivalent Unions/Partners

1985

0

0

1990

0

1

1995

0

3

2000

0

6

2005

3

13

2007

5*

15*

*The Netherlands has both SSM and SSDPs.  South Africa has both also; parties who take avantage of the Civil Union law can choose to call their relationships marriages.

 

Appendix 2: Legal Status of Marriage As Union of Man and Woman in the United States and the World

• Same-Sex Marriage Legal: Five* Nations and One USA State
The Netherlands, Belgium, Canada, Spain, South Africa*; (and MA)

• Same-Sex Unions Equivalent to Marriage Legal in Thirteen Nations and 6 US states
Denmark, Norway, Sweden, Iceland, Finland, France, Germany, Luxembourg, Slovenia, Andorra, Switzerland, UK; New Zealand; (and CA, CN, NH. NJ, OR, VT).

• Same-Sex Unions Registry & Some Benefits in At Least Nine Nations and 4 US states
At least 9 More Nations (Israel, Hungary, Portugal, Croatia, Czech Republic, New Zealand, Argentina, Columbia; (and HI, ME, WA, & DC)

 

Appendix 3: Constitutions Defining Marriage As Union of Man and Woman in the USA and the World

• 137 Nations Have Constitutional Marriage Provisions (82) and/or Family Provisions.

• Thirty-two (32) Nations with Constitutional Provisions Explicitly or Implicitly Defining Marriage As Union of Man and Woman

Armenia (art. 32), Azerbaijan (art. 34), Belarus (art. 32), Brazil (art. 226), Bulgaria (art. 46), Burkina Faso (art. 23), Cambodia (art. 45), China (art. 49), Columbia (art. 42), Cuba (art. 43), Ecuador (art. 33), Eritrea (art. 22), Ethiopia (art. 34), Honduras (art. 112), Japan (art. 24), Latvia (art. 110 - Dec. 2005), Lithuania (art. 31), Moldova (art. 48), Nicaragua (art. 72), Mongolia (art. 16), Namibia (art. 14), Paraguay (arts. 49, 51, 52), Peru (art. 5), Poland (art. 18), Somalia (art. 2.7), Suriname (art. 35), Tajiksistan (art. 33), Turkmenistan (art. 25), Uganda (art. 31), Ukraine (ark. 51), Venezuela (art. 77), Vietnam (art. 64).
Examples: Article 46 of the Constitution of Bulgaria provides: “(1) Matrimony is a free union between a man and a woman. . . .” Art. 51, Constitu. of Ukraine, provides: “Marriage is based on the free consent of a woman and a man.”

• Same-Sex Marriage Banned by State Marriage Amendments (SMAs) to U.S. State Constitutions in 27 states: AK, AL, AR, CO, GA, HI, ID, KY, KS, LA MI, MS, MO, MN, NB, NV, ND, OH, OK, OR, SC, SD, TN, TX, UT, VI, & WI  (average voter approval ~ 70%).

-Constitutional Mandate for SSDPs rejected: CO

-SMAs rejected by voters in one state: AZ (49-51)

-Same-Sex Marriage Explicitly Prohibited by Statutes in 44 US states (all except  CN, MA, NJ, NM, NY, RI).

• Sodomy is Illegal in 70+ Nations and A Capital Offense in 9 Nations:    Afghanistan, Iran, Mauritania, Nigeria, Pakistan, Saudi Arabia, Sudan, UAE, Yemen.

Major Sources:  Sodomy Laws, Laws Around the World, last updated June 2, 2006, available at http://sodomylaws.org/world/world.htm (last seen October 2, 2006) (listing nine nations where sodomy is punishable by death); Elizabeth Kukura, Finding Family: Considering the Recognition of Same-Sex Families in Human Rights Law and the European Court of Human Rights, 13 Hum. Rts. Br. 17, 17-18 (Iss. No. 2, Winter 2006); National Conference of State Legislatures, Same Sex Marriage (Jan 2007), available at http://www.ncsl.org/programs/cyf/samesex.htm  .

ENDNOTES:

[1].Clifford Arthur provided valuable research assistance in the preparation of this paper.

[2].Elie Wiesel, Night 1 (1972, 1985, 2006).

[3].Id. at 7.

[4] “On the seventh day of Passover, the curtain finally rose: the Germans arrested the leaders of the Jewish community.

“From that moment on, everything happened very quickly. The race toward death had begun.

“Moishe the Beadle came running to our house.

“’I warned you,’ he shouted. And left without waiting for a response.  Id. at 10.

[5] Maynard v. Hill, 125 U.S. 190 (1888).

[6] See Domestic Partner Bill Vetoed in California, N.Y. TIMES, September 13, 1994, at A14.

[7] See Lynn D. Wardle, Legal Claims for Same-Sex Marriage: Efforts to Legitimate A Retreat from Marriage by Redefining Marriage, 39 So. Tex. L. Rev. 735 (1998).

[8] Col. Alexander K. McClure, Lincoln=s Yarns and Stories 323 (1980); see also J. Bartlett, The Shorter Bartlett's Familiar Quotations 218(d) (1961).

[9] United States v. Virginia, 116 S.Ct. 2264, 2276 (1996)(brackets in original; quoting Ballard v. United States, 329 U.S. 187, 193 (1946)).

[10]David W. Murray, Poor Suffering Bastards: An Anthropologist Looks at Illegitimacy, Policy Rev. (Spring, 1994) at 9. (“The history of human society shows that when people stop marrying, their continuity as a culture is in jeopardy.”Id.).

[11] That is why historically and in twenty-first century there has been such great concern about so many children being born and raised out of wedlock.  See Robert J. Stonebraker, The Joy of Economics: Making Sense out of Life, Moral Decay, Winthrop University, available online at http://faculty.winthrop.edu/stonebrakerr/book/unwedmoms.htm .  See  Lynn D. Wardle, The Morality of Marriage, in : How Legalizing Same-Sex Marriage Will Harm Children, Families and Society (book manuscript on file with author).

[12]See Bruce C. Hafen, Individualism and Autonomy in Family Law: The Waning of Belonging, 1991 BYU L. Rev. 1 (1991); Takeo Doi, The Anatomy of Dependence (John Bestor, transla., 1973).

[13]See, e.g., Linda J. Waite and Maggie Gallagher, The Case for Marriage 47-52. 152=58. 162-65 (2000) (relations of spouses healthier, less domestic violence, less victimization of many kinds).

[14]Id.at 75-89 (Married couples generally have more sex and enjoy it more, finding it physically satisfying and emotionally satisfying than non-married couples.)

[15]Id. at 165-68 (husbands and wives both happier than singles; better mental health).

[16] David Blankenhorn, The Future of Marriage (2007). See also David Blankenhorn, Defining Marriage Down . .  ., Weekly Standard, April 2, 2007 (12:28) at http://www.weeklystandard.com/Content/Public/Articles/000/000/013/451noxve.asp .

[17] Blankenhorn, Defining Marriage Down, supra at *2. (Analyzing data from the International Social Science Programme).

[18] Id.

[19] Id.

[20]Maria Xiridou, Ronald Geskus, et al., The contribution of steady and casual partnerships to incidence of HIV infection among homosexual men in Amsterdam, 17 (7) AIDS 1029 (2 May 2003), available at http://www.aidsonline.com/pt/re/aids/pdfhandler.00002030-200305020-00012.pdf;jsessionid=FrMF7bsJNJx6Znq8QlqzTFXPQSShnmnLTy4TG4pmbXlySXPTnyz9!1057067369!-949856144!8091!-1 (seen February 20, 2007). The purpose of the study was to assess whether provision of certain AIDS drugs had resulted in an increase of unsafe sexual practices in the gay community in The Netherlands.

[21]Id.

[22] Martin S. Bell & Alan P. Weinberg, Homosexualities: A Study of Diversity Among Men and Women 308-09 (1978).

[23] Paul Van de Ven, et al., A Comparative Demographic and Sexual Profile of Older Homosexually Active Men, 34 Journal of Sex Research 354 (1997),  cited in Dailey, supra note __, at __.

[24]Marshall Kirk & Hunter Madsen,  After the Ball 330 (1989). Likewise, Andrew Sullivan contrasts male-female marriages with same sex relationships and explains, “there is more likely to be a greater understanding of the need for extramarital outlets between two men than between a man and a woman.” Andrew Sullivan, Virtually Normal 202 (1996), cited in IVC Statistics, supra note __, at __.

[25]Gunnar Andersson, Turid Noack, Ane Sierstad & Harald Weedon-Fekjaer, The Demographics of Same-Sex Marriages in Norway and Sweden, 43 Demography 79, 89-90 (2006), available at http://muse.jhu.edu/journals/demography/v043/43.1andersson.html#tab02.

[26]Maggie Gallagher & Joshua K. Baker, Same-Sex Unions and Divorce Risk: Data from Sweden, iMAPP Policy Brief, May 3, 2004 copy in author’s possession.

[27]Id.

[28]Sondra E. Solomon, Esther D. Rothblum, Kimberly F. Balsam,  Money, housework, sex, and conflict: same-sex couples in civil unions, those not in civil unions, and heterosexual married siblings, 52 Sex Roles ___ (May 2005).

[29]Id. The authors said there was no significant difference between lesbians and married heterosexual women in infidelity.

[30]  Id.

[31]U.S. Dep't of Health & Human Services, Public Health Service, Centers for Disease Control and Prevention, HIV/AIDS Surveillance Report, Vol. 5, No. 2 (July 1993) at 14, Table 12 (Fifty-three percent of all AIDS cases reported through June of 1993 (166,023 cases) involved the single mode of exposure of men who have sex with men. The second most common method of transmission was intravenous drug use, which accounted for only 20% of the AIDS cases.  Id.).

[32] AIDS Epidemic Update, December, 2003; World Health Organization (WHO) Summary of HIV/AIDS Epidemic, December 2005.

[33] BioLaw, Updates: AIDS Statistics, §3-8 at U:274 (1987).

[34]Id. at 21; see also id., n.92).

[35] Lynn D. Wardle, “Multiply and Replenish”: Considering Same-Sex Marriage in Light of State Interests in Marital Procreation, 24 Harv.  J.  L. & Pub.  Pol’y 771 (2001).

[36] See generally Maggie Gallagher, The Senator Who Cried ‘Bigot,’ Real Clear Politics, June 7, 2006, available at http://www.realclearpolitics.com/articles/2006/06/the_senator_who_cried_bigot.html (seen April 4, 2007)..

[37] See, e.g., Thomas J. Paprocki, Marriage, Same-Sex Relationships, and the Catholic Church, 38 Loy. U. Chi. L.J. 247 (2007) (describing incidents in California and Massachusetts in which Catholic Social Services had been attacked or excluded from the public square); Helen M. Alvare, The Moral Reasoning of Family Law: The Case of Same-Sex Marriage, 38 Loy. U. Chi. L.J. 349 (2007) (describing restriction of Catholic Church ability to meet needs of its community because of restrictive gay rights laws); Maggie Gallagher, Banned in Boston, Weekly Standard, May 15, 2006, at 20 (reporting that after a century of providing adoption services, Catholic had been forced to close its adoption work because Massachusetts had adopted a new rule requiring all agencies, including church-affiliated agencies, to place children for adoption with gay and lesbian adults seeking to adopt).

[38] See generally Roger Severino (Legal Counsel, The Beckett Fund for Religious Liberty), Or for Poorer: How Same-Sex Marriage Threatens Religious Liberty in What’s the Harm: How Legalizing Same-Sex Marriage Will Harm Children, Families and Society (manuscript on file with author). 

[39] See e.g., Smith v. Fair Employment & Housing Comm’n,(Cal 1996); Swanner v. Anchorage Equal Rights,(Alaska 1994); Levin v. Yeshiva University, (N.Y. 2001).

[40] See Gay Issue Spurs Catholic Group to End Adoptions, ABC News, http://abcnews.go.com/GMA/Story?id=1715489&page=1, 12 March 2006.

[41] See George Jones, Church Loses Opt-Out Fight Over Gay Adoptions, Telegraph.co.uk, http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/01/30/ngay30.xml, May 6, 2007.

[42] See  SEQ CHAPTER \h \r 1Error! Main Document Only.Christopher Lisotta, Gay foster parents win California ruling, at http://www.gay.com/news/article.html?2003/03/04/3  (,adoption agency must serve lesbians).

[43] Benitez v. North Coast Women’s Care Medical Group, Inc., 2004 WL 2047111 (trial court order denying doctor’s religious liberty defense), see also id., 37 Cal.Rptr.3d 20 (Cal. App. 2005) (court says marital exemption does not apply to case); id., 46 Cal.Rptr3d 605 (Cal. 2006) (review granted).

[44] Gay Rights Coalition of Georgetown University Law Center v. Georgetown University, (D.C. Ct. App. 1987). 

[45]Catholic Charities of Sacramento v. Superior Court, (Cal. 2004).

[46] See generally Lesbian Couple Wins $2,000 Settlement, CBCNEWS, http://www.cbc.ca/canada/story/2005/11/29/knights_lesbians051129.html, Nov. 29, 2005; B.C. Tribunal Awards Lesbian Couple Damages, CTV.ca, http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20051129/tribunal_lesbiancouple_051129/20051129?hub=Canada, Nov. 30, 2005; Terry Vanderheyden, Knights of Columbus Forced to Pay Damages to Lesbians for Refusing to Rent Hall for “Wedding” Reception, Life Site, http://www.lifesite.net/ldn/2005/nov/05113006.html, Nov. 30, 2005.

[47] See generally Heather Mac Donald, Boy Scout Battle Pits Gay Activists vs. Minority Kids, Wall St. J., July 6, 2000; San Diego city campground lease, Berkeley, California berth, exclusion from public fund-raising campaign, etc.); Peter Ferrara, The War on Boy Scouts: The ACLU Never Sleeps, The Weekly Standard, Vol. 009, Issue 03, available at http://www.bsalegal.org/downloads/War_on_Scouts.pdf, Sep. 29, 2003; Supreme Court Rejects Boy Scouts’ Appeal, MSNBC, http://www.msnbc.msn.com/id/15289493/ , Oct. 16, 2006.

[48] See generally newspapers or other sources* .

[49] See generally Bob Jones University (1983).

[50] For example, in the Jacob Parker incident in which a father protesting the reading of a gay propoganda book to his son in a first-grade class was arrested, the child later beaten at the school, etc.  See generally http://www.massresistance.com/docs/parker/

[51] Trinity Wester University v. College of Teachers, [2001] 1 S.C.R. 223, 2001 SCC 31.

[52] See generally, The Becket Fund, Sweden – Criminalizing Religious Speech – Ake Green, http://www.becketfund.org/index.php/case/93.html .

[53] See A. Scott Loveless, Children on the Front Lines of an Ideological War, 22 St. Louis. Univ. Pub. L. Rev. 371, 391 n.63 (2003) (citing R. v. Hammond in Dorset and Owens v. Saskatchewan, [2002] SKQB 506 at http://canlii.org/sk/cas/skqb/2002/2002skqb506.htm. .

[54]Liam Reid, Legal warning to church on gay stance, Irish Times, Aug. 2, 2003, at   http://www.ireland.com/newspaper/frontpage/2003/0802/1059775167952.html .

[55] Even the movement to legalize alternative relationships (whether nonmarital cohabitation or same-sex relations) manifests, at one level, a strong reaction by young adults to the instability, dysfunction, and painful failure of many of their own parents’ marriages, and in the families of their childhood friends. See Wardle, Legal Claims for Same-Sex Marriage, supra note __.

[56].See William N. Eskridge & Darren R. Spedale, Gay Marriage: For Better or For Worse? What We’ve Learned from the Evidence (2006).

[57].See The Widening Division in the Anglican Communion, Christianity Today, May 5, 2007, at http://www.christianitytoday.com/ct/special/anglicans.html .

[58].Muhammad M. Abu Layiah, Islamic Policy on Marriage  at http://www.legacyleader.com/ln/article.asp?articleid=21 (“Gay marriage is totally prohibited in Islam . . . .”). See generally Ibrahim B. Syed, Same Sex Marriage and Marriage in Islam, at Islamic Research Foundation International, Inc., http://www.irfi.org/articles/articles_151_200/same_sex_marriage_and_marriage_i.htm .

[59].Id. (Table showing 2003 marriage rate of 4.76 in EU-25, but 4.72 in EU-15).

[60].Delaying Marriage, supra note __, citing Dimiter Philipov, Major Trends Affecting Families in Central and Eastern Europe," Major Trends Affecting Families: A Background Document, Report for United Nations, Department of Economic and Social Affairs, Division for Social Policy and Development, Program on the Family (2003), p. 2. Archived at: http://www.un.org/esa/socdev/family/Publications/mtphilipov.pdf

[61].See Lynn D. Wardle, The Need for and Prospects of a Second Renaissance – of Marriage, paper presented at Vienna Colloquium on Marriage sponsored by the Doha International Institute for Family Studies and Development (copy on file with author).

[62].See Appendix I, infra (listing Bulgaria, Latvia, Lithuania, Moldova, Poland, and Ukraine).

[63].Gallup Europe, The European Omnibus Survey available at <http://www.gallupeurope.com/history.htm> (seen September 10, 2003) (on file with author).

[64]See Louisianna Dep’t. of Health and Hospitals, Hurricane Katrina, Deceased Reports, at http://www.dhh.louisiana.gov/offices/page.asp?ID=192&Detail=5248 . (1,464 deaths from Louisianna, over 340 deaths in neighboring states).

[65] Jay Ward Moody, Julie Boerio-Goates, Bart Kowallis, et al., Physical Science Foundations *469 (page proof August 2005, published January 2006).

[66].The Nobel Peace Prize Acceptance Speech Delivered by Elie Wiesel in Oslo on December 10, 1986 in Night, supra at 117, 118.

[67].Gordon B. Hinckley, The Family, We Can Save Our Nation by Saving Our Homes in  Standing for Something 143 (2000). 

[68].Gordon B. Hinckley, Standing for Something 167-68, 170-71, 172 (2000) (emphasis added).

[69].Id. at 120.

[70].Gordon B. Hinckley, The Family, We Can Save Our Nation by Saving Our Homes in  Standing for Something 144-45 (2000). 

 

 

 

 

 

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