Marriage facts

Harvard Journal of Law and Public Policy

Volumn 31, Issue 1, 2008, Pages 313-369

  Stewart, Monte Neil ^a  

^a Marriage Law Foundation

Author keywords

[No Author keywords available]

Indexed keywords

EID: 40549131861     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (467)

1. Samuel Freeman Miller, appointed to the Supreme Court in 1862 by Abraham Lincoln, is reported to have said: "In my experience in the conference room of the Supreme Court of the United States,... I have been surprised to find how readily those judges came to an agreement upon questions of law, and how often they disagree in regard to questions of facts." JEROME FRANK, IF MEN WERE ANGELS: SOME ASPECTS OF GOVERNMENT IN A DEMOCRACY 78 (Harper & Brothers 1942) (1930).
2. When deciding the constitutionality of the post-war restrictions on Communist Party activities, for example, the Supreme Court deferred to congressional findings of fact about the nature of the threat posed by the Communist Party and the international communist movement. See Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 5-8, 96-97 (1961).
3. Similarly, the Court considered testimony before congressional committees on the invidious effects of racial discrimination in sustaining the Civil Rights Act of 1964 against a Commerce Clause challenge. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-53 (1964).
4. But see Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829, 843 (1978) ("Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake.").
5. In striking down laws restricting non-whites from marrying whites, for example, the California Supreme Court in Perez v. Lippold, 198 P.2d 17 (Cal. 1948),
6. and the United States Supreme Court in Loving v. Virginia, 388 U.S. 1 (1967),
7. correctly found the origin of those laws to be in white supremacist dogma and political action. See Monte Neil Stewart & William C. Duncan, Marriage and the Betrayal of Perez and Loving, 2005 BYU L. REV. 555, 570-75, available at http://marriagelawfoundation.org/ mlf/publications/Betrayal.pdf.
8. In chronological order, those appellate court decisions are: Minnesota: Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed for want of a federal question, 409 U.S. 810 (1972);
9. Kentucky: Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973);
10. Washington: Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974), review denied, 84 Wash. 2d 1008 (1974);
11. Ninth Circuit: Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), cert denied, 458 U.S. 1111 (1982);
12. Pennsylvania: De Santo v. Barnsley, 476 A.2d 952 (Pa. Super. Ct. 1984);
13. Hawaii: Baehr v. Lewin, 852 P.2d 44 (Haw. 1993);
14. id. at 68 (Burns, C.J., concurring);
15. id. at 70 (Heen, J., dissenting);
16. District of Columbia: Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995);
17. id. at 361 (Terry, J., concurring);
18. id. at 362 (Steadman, J., concurring); Vermont: Baker v. State, 744 A.2d 864 (Vt. 1999);
19. id. at 889 (Dooley, J., concurring);
20. id. at 897 (Johnson, J., concurring in part and dissenting in part);
21. Arizona: Standhardt v. Superior Court, 77 P.3d 451 (Ariz. Ct. App. 2003);
22. Massachusetts: Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003);
23. id. at 970 (Greaney, J., concurring);
24. id. at 974 (Spina, J., dissenting);
25. id. at 978 (Sosman, J., dissenting);
26. id. at 983 (Cordy, J., dissenting);
27. Indiana: Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005);
28. id. at 35 (Friedlander, J., concurring);
29. New Jersey: Lewis v. Harris, 875 A.2d 259 (N.J. Super. Ct. App. Div. 2005);
30. id. at 274 (Parrillo, J., concurring);
31. id. at 278 (Collester, J., dissenting);
32. New York: Hernandez v. Robles, 805 N.Y.S.2d 354 (App. Div. 2005);
33. id. at 363 (Catterson, J., concurring);
34. id. at 377 (Saxe, J., dissenting);
35. Samuels v. N.Y. Dep't. of Pub. Health, 811 N.Y.S.2d 136 (App. Div. 2006);
36. Seymour v. Holcomb, 811 N.Y.S.2d 134 (App. Div. 2006);
37. Kane v. Marsolais, 808 N.Y.S.2d 566 (App. Div. 2006);
38. Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006);
39. id. at 12 (Graffeo, J.., concurring);
40. id. at 22 (Kaye, C.J., dissenting);
41. Washington: Andersen v. King County, 138 P.3d 963 (Wash. 2006);
42. id. at 991 (Alexander, C.J., concurring);
43. id. (Johnson, J., concurring);
44. id. at 1027 (Bridge, J., dissenting);
45. id. at 1040 (Chambers, J., dissenting);
46. id. at 1012 (Fairhurst, J., dissenting);
47. California: In re Marriage Cases, 49 Cal. Rptr. 3d 675 (Ct. App. 2006);
48. id. at 727 (Parilli, J., concurring);
49. id. at 731 (Kline, J., dissenting);
50. New Jersey: Lewis v. Harris, 908 A.2d 196 (N.J. 2006);
51. id. at 224 (Poritz, C.J., concurring in part and dissenting in part);
52. Maryland: Conaway v. Deane, No. 44, 2007 WL 2702132 (Md. Sept. 18 2007);
53. id. at *39 (Raker J., concurring in part and dissenting in part);
54. id. at *81 (Bell, C.J., dissenting);
55. id. at *50 (Battaglia, J., dissenting). This list is current as of November 20, 2007.
56. See, e.g., INST, FOR AM. VALUES, MARRIAGE AND THE LAW: A STATEMENT OF PRINCIPLES 18 (2006) ("[T]he basic understanding of marriage underlying much of the current same-sex marriage discourse is seriously flawed ....");
57. see also Maggie Gallagher, Does Sex Make Babies? Marriage, Same-Sex Marriage and Legal Justifications for the Regulation of Intimacy in a Post-Lawrence World, 23 QUINNIPIAC L. REV. 447, 451-71 (2004)
58. [hereinafter Gallagher, Does Sex Make Babies?];
59. Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to Andrew Koppelman, 2 U. ST. THOMAS L.J. 33, 35-65 (2004)
60. [hereinafter Gallagher, Reply];
61. Monte Neil Stewart, Eliding in Washington and California, 42 GONZ. L. REV. 501, 516-46 (2007)
62. [hereinafter Stewart, Washington and California];
63. Monte Neil Stewart, Eliding in New York, 1 DUKE J. CONST. L. & PUB. POL'Y 221, 231-58 (2006), available at http://www.manwomanmarriage.org/jrm/pdf/ElidingInNewYork.pdf
64. [hereinafter Stewart, New York];
65. Monte Neil Stewart, Genderless Marriage, Institutional Realities, and Judicial Elision, 1 DUKE J. CONST. L. & PUB. POL'Y 1, 28-78 (2006), available at http://www.manwomanmarriage. org/jrm/pdf/Duke_Journal_Article.pdf
66. [hereinafter Stewart, Judicial Elision];
67. Monte Neil Stewart, Judicial Redefinition of Marriage, 21 CAN. J. FAM. L. 11, 41-99 (2004),
68. [hereinafter Stewart, Redefinition];
69. Monte Neil Stewart, Dworkin, Marriage, Meanings-and New Jersey, 4 RUTGERS J.L. & PUB. POL'Y 271, 280-81 (2007), available at http://manwomanmarriage.org/ jrm/pdf/Dworkin.pdf
70. [hereinafter Stewart, Dworkin].
71. Cf. F.C. DeCoste, Courting Leviathan: Limited Government and Social Freedom in Reference re Same-Sex Marriage, 42 ALTA. L. REV. 1099, 1102-03 (2005)
72. [hereinafter DeCoste, Leviathan] (criticizing the Canadian Supreme Court's distinction between "civil" and "religious" marriage);
73. F.C. DeCoste, The Halpern Transformation: Same-Sex Marriage, Civil Society, and the Limits of Liberal Law, 41 ALTA. L. REV. 619, 625-28 (2003)
74. [hereinafter DeCoste, Transformation] (criticizing a Canadian Appeals Court dedsion for "ignoring, by defining away, the meaning of marriage at law and as cultural practice").
75. See INST, FOR AM. VALUES, WHY MARRIAGE MATTERS: TWENTY-SIX CONCLUSIONS FROM THE SOCIAL SCIENCES 15 (2d ed. 2005).
76. See Bruce Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy: Balancing the Individual and Social Interests, 81 MICH. L. REV. 463,472 (1983): Perhaps because family life is so much a part of the unspecifiable bedrock of society, there has been a puzzling inattention in both legal and other literature to the broad social policies underlying the preference historically given by the law to family relationships. This contrasts remarkably with the voluminous scholarly work on individual rights. Domestic patterns universally accepted before the dawn of law and government have hardly seemed to require full-dress justification. Thus, the case law and other commentary on our traditional assumptions seldom go beyond platitudes and cliches. The objectives of a democratic society based on established patterns of marriage and kinship should not be terribly mysterious; serious scholars, however, have seldom felt a need to document them.
77. Pub. L. 104-199, 110 Stat. 2419 (1996), (codified at 1 U.S.C. § 7 & 28 U.S.C. § 1738(C) (1997)).
78. The legislative history of the Act indicates that the bill was born out of concern that, because of the requirements of interstate comity (specifically, full faith and credit), a judicially mandated recognition of genderless marriage in Hawaii could limit the power of the other 49 states to decide their own marriage policies. See, e.g., H.R. REP. NO. 104-664, at 4-10 (1996),
79. reprinted in 1996 U.S.C.C.A.N. 2905, 2908-2914. Opponents of the legislation also focused their discussion on "the legal history of the full faith and credit clause which is central to this dispute [sic]."
80. Id. at 36,
81. as reprinted in 1996 U.S.C.C.A.N. 2905, 2939. Testimony in committees focused mainly on issues of full faith and credit, the role of the federal government, and the constitutionality of the bill.
82. See, e.g., The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. 23-41 (1996) (statement of Lynn D. Wardle, Professor of Law, Brigham Young University);
83. The Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. 87-117 (1996) (statement of Hadley Arkes, Ney Professor of Jurisprudence and American Institutions, Amherst College);
84. id. at 202-211 (1996) (statement of David Saperstein, Director and Counsel, Religious Action Center of Reform Judaism). The Senate debate, 142 CONG. REC. S10100-123 (1996),
85. and the House debate, 142 CONG. REC. H7441-83 (1996), had similar fod. None of the legislators, then, debated the fundamental policy issue: whether sodety as a whole would be better served by the existing marriage institution or by the newly proposed one.
86. See Gallagher, Reply, supra note 5, at 34 ("[F]or many years, the same-sex marriage debate has been a legal debate, mostly confined to lawyers, judges, and legal scholars, few of whom have any particular background in marriage at all.").
87. Although some litigated the same-sex marriage issue before 1991, see supra note 4, the commencement of the marriage litigation in Hawaii that year marked the beginning of the organized and strategic effort to redefine marriage by judicial mandate.
88. See William C. Duncan, The Litigation to Redefine Marriage: Equality and Social Meaning, 18 BYU J. PUB. L. 623, 630-42 (2003) (discussing Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)).
89. For a list of the cases since 1992 that have culminated in appellate court decisions, see supra note 4.
90. Here, in chronological order, are the cases that have not yet had such a decision: Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743 (Alaska Super. Feb. 27, 1998);
91. v. State, No. 0403-03057, 2004 WL 1258167 (Or. Cir. Apr. 20, 2004);
92. In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004);
93. Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005);
94. Deane v. Conway, No. 24-C-04-53900, 2006 WL 148145 (Md. Cir. Ct. Jan. 20, 2006);
95. Kerrigan v. State, 909 A.2d 89 (Conn. Super. Ct. 2006);
96. Bishop v. Oklahoma ex rel. Edmondson, 447 F. Supp. 2d 1239 (N.D. Okla. 2006);
97. Varnum v. Brien, No. CV 5965 (Iowa Dist. Ct. Aug. 30, 2007), available at http://data.lambdalegal.org/pdf/legal/varnum/ varnum-d-08302007-ia- district.pdf. This list is current as of November 20, 2007.
98. Cf. Armour & Co. v. Wilson & Co., 274 F.2d 143, 155 (7th Cir. 1960) (Hastings, C.J.) (confirming that such terms are oft-used, but suggesting that they are not always helpful).
99. 5 OXFORD ENGLISH DICTIONARY 651 (2d ed. 1989) (definition 4a of "fact").
100. See id. (definition 5 of "fact").
101. Some proponents of genderless marriage have expressed discomfort with this particular shorthand phrase-suggesting that the phrase somehow neuters or paints as without gender those who enter into such a marriage. It does no such thing. "Genderless" modifies "marriage," not the persons participating in the marriage. Each man or woman participating in a marriage, of course, is just that, a man or a woman.
102. Since the beginning of the organized and strategic effort to redefine marriage by judicial mandate-that is, since the beginning of the Hawaii litigation in 1991, see supra notes 4 and 11 -the judges and lawyers involved in the litigation have proceeded in very large measure as if the marriage facts are not "adjudicative facts" as Professor Davis conceived such.
103. Kenneth C. Davis, An Approach to Problems of Evidence in Administrative Process, 55 HARV. L. REV. 364, 402-03 (1942) (adjudicative facts are those particular to the dispute-the who, what, when, and where type of facts-and generally are within the province of the trier-of-fact). Rather, the courts and counsel have proceeded-and rightly so-as if the marriage facts are or are akin to "legislative facts," id. (facts that transcend the particular dispute and help the court resolve questions of law, policy, and discretion), or, more narrowly, "constitutional facts," including "constitutional-review facts," id. (legislative facts and other understandings of broad social phenomenon underlying and interwoven through normative constitutional judgments).
104. See David L. Faigman, "Normative Constitutional Fact-Finding": Exploring the Empirical Component of Constitutional Interpretation, 139 U. PA. L. REV. 541, 552-55 (1991). Discernment of the constitutional facts is ultimately the province of the appellate courts and necessarily and appropriately involves them in "normative constitutional fact-finding." Id. at 551-65;
105. see also Henry P. Monaghan, Constitutional Fact Review, 85 COLUM. L. REV. 229, 233-40 (1985).
106. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 948 (Mass. 2003);
107. see also 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.").
108. See Peter A. Hall & Rosemary C.R. Taylor, Political Science and the Three New Institutionalisms, 44 POL. STUD. 936, 947-48 (1996);
109. Stewart, Judicial Elision, supra note 5, at 9-10.
110. Professor Clayton defines an "institution" as: "[a]n organized system of social relationships (roles, positions, norms) that is pervasively implemented in the society and that serves certain basic needs of the society." RICHARD R. CLAYTON, THE FAMILY, MARRIAGE, AND SOCIAL CHANGE 22 (2d ed. 1979) (emphasis added);
111. see also 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., 2001) ("An institution is a web of interrelated norms- formal and informal-governing social relationships.");
112. William M. Sullivan, Institutions as the Infrastructure of Democracy, in NEW COMMUNITARIAN THINKING: PERSONS, VIRTUES, INSTITUTIONS, AND COMMUNITIES 170, 175 (Amitai Etzioni ed., 1995) ("Institutions ... are normative patterns that define purposes and practices, patterns embedded in and sanctioned by customs and law."). For an "omnibus conception of institutions,"
113. see W. RICHARD SCOTT, INSTITUTIONS AND ORGANIZATIONS 48-58 (2d ed. 2001).
114. See SCOTT, supra note 20, at 54-58;
115. HELEN REECE, DIVORCING RESPONSIBLY 185 (2003);
116. MARY DOUGLAS, HOW INSTITUTIONS THINK 108 (1986);
117. Stewart, Judicial Elision, supra note 5, at 9-10;
118. Sullivan, supra note 20, at 175.
119. See generally Stewart, Washington and California, supra note 5, at 503 n.9.
120. See INST. FOR AM. VALUES, supra note 6, at 15.
121. For a detailed discussion of these six goods, see Stewart, Judicial Elision, supra note 5, at 16-20.
122. See, e.g., COMM'N ON PARENTHOOD'S FUTURE, THE REVOLUTION IN PARENTHOOD: THE EMERGING GLOBAL CLASH BETWEEN ADULT RIGHTS AND CHILDREN'S NEEDS 32 (2006), available at http://www.americanvalues.org/pcdf/parenthood.pdf ("The legalization of same-sex marriage, while sometimes seen as a small change affecting just a few people, raises the startling prospect of fundamentally breaking the legal institution of marriage from any ties to biological parenthood.");
123. Margaret Somerville, What About the Children?, in DIVORCING MARRIAGE: UNVEILING THE DANGERS IN CANADA'S NEW SOCIAL EXPERIMENT 63, 67 (Daniel Cere & Douglas Farrow eds., 2004) ("[A]ccepting same-sex marriage necessarily means accepting that the societal institution of marriage is intended primarily for the benefit of the partners to the marriage, and only secondarily for the children born into it.").
124. See Stewart, Judicial Elision, supra note 5, at 17-18;
125. Stewart, Redefinition, supra note 5, at 44-48.
126. Putting aside for the moment the scientific adequacy of studies of the mother-lesbian partner child-rearing mode, discussed infra Part II.C.2.b, it is now uncontroversial that the married mother-father child-rearing mode significantly correlates with the optimal outcomes deemed crucial for a child's well-being. See, e.g., THE WITHERSPOON INST., MARRIAGE AND THE PUBLIC GOOD: TEN PRINCIPLES 16-38 (2006), available at http://www. princetonprinciples.org/files/Marriage%20 and%20the%20Public%20Good.pdf;
127. INST. FOR AM. VALUES, supra note 6, at 12-32 (listing twenty-six positive social effects of marriage).
128. See, e.g., DAVID BLANKENHORN, THE FUTURE OF MARRIAGE 93 (2007) ("More than any other human relationship, marriage bridges the sexual divide in the human species.");
129. COUNCIL ON FAMILY LAW, THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE CRISIS IN NORTH AMERICA 12-13 (2005), available at http://www.marriagedebate.com/pdf/future_of_family_law.pdf (noting that marriage "provides an evolving form of life that helps men and women negotiate the sex divide").
130. See DeCoste, Transformation, supra note 5, at 625-27.
131. See, e.g., DAVID POPENOE, LIFE WITHOUT FATHER 139-88 (19%);
132. THE WITHER-SPOON INST., supra note 27, at 21-27.
133. Stewart, Redefinition, supra note 5, at 52-57;
134. Gallagher, Does Sex Make Babies?, supra note 5, at 451.
135. What is important for my purposes is that all six social goods described in the text are the product of the institutionalized man-woman meaning and that, exactly because those goods do much to meet certain basic human and social needs, our society has a compelling interest in their perpetuation. In this light, deciding which of these vital social goods is most valuable or whether perpetuation of each, separate and alone, qualifies as a compelling governmental interest-although certainly an interesting intellectual endeavor-would seem to serve no large practical purpose relative to resolution of the marriage issue.
136. See Stewart, New York, supra note 5, at 236-37;
137. see also infra Part II.C.1.b.
138. See Stewart, Judicial Elision, supra note 5, at 11-13.
139. Id. at 20-24. For example, the man-woman marriage institution makes meaningful the child's "bonding right" - a right to know and be reared by one's own biological parents. Id. at 21-22.
140. Id. at 20-21.
141. See DOUGLAS, supra note 21, at 108 ("First the people are tempted out of their niches by new possibilities of exercising or evading control. Then they make new kinds of institutions, and the institutions make new labels, and the label makes new kinds of people.");
142. Hall & Taylor, supra note 19, at 948 ("Here, one can see the influence of social constructivism on the new institutionalism in sociology....[!Institutions do not simply affect the strategic calculations of individuals,... but also their most basic preferences and very identity. The self-images and identities of social actors are said to be constituted from the institutional forms, images and signs provided by social life.");
143. Stewart, New York, supra note 5, at 240-41.
144. See Stewart, New York, supra note 5, at 240.
145. See id.
146. See BLANKENHORN, supra note 28, at 167;
147. Daniel Cere, War of the Ring, in DIVORCING MARRIAGE: UNVEILING THE DANGERS IN CANADA'S NEW SOCIAL EXPERIMENT 11-13 (Daniel Cere & Douglas Farrow eds., 2004);
148. Douglas Farrow, Canada's Romantic Mistake, in DIVORCING MARRIAGE, at 1-5;
149. LADELLE MCWHORTER, BODIES AND PLEASURES: FOUCAULT AND THE POLITICS OF SEXUAL NORMALIZATION 125 (1999);
150. JOSEPH RAZ, THE MORALITY OF FREEDOM 393 (1986) ("I don't 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 divide-those who favor gay marriage and those who do not-acknowledge this reality.");
151. JUDITH STACEY, IN THE NAME OF THE FAMILY: RETHINKING FAMILY VALUES IN THE POSTMODERN AGE 126-28 (1996);
152. Katherine K. Young & Paul Nathanson, The Future of an Experiment, in DIVORCING MARRIAGE, at 48-56;
153. Angela Bolt, Do Wedding Dresses Come in Lavender? The Prospects and Implications of Same-Sex Marriage, 24 SOC. THEORY & PRAC. 111, 114 (1998);
154. Devon W. Carbado, Straight Out of the Closet, 15 BERKELEY WOMEN'S LJ. 76, 95-96 (2000);
155. Gallagher, Reply, supra note 5, 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 re-engineering of the meaning of marriage.");
156. E.J. Graff, Retying the Knot, 262 THE NATION 12 (June 24,1996) ("The right wing gets it: Same-sex marriage is a breathtakingly subversive idea. . . . Marriage is an institution that towers on our social horizon, defining how we think about one another .... [S]ame-sex marriage . .. announces that marriage has changed shape.");
157. Nan D. Hunter, Marriage, Law, and Gender: A Feminist Inquiry, 1 LAW & SEXUALITY REV. LESBIAN & GAY LEGAL ISSUES 9, 12-19 (1991);
158. Andrew Sullivan, Recognition of Same-Sex Marriage, 16 QUINNIPIACL. REV. 13,15-16 (1996).
159. Hernandez v. Robles, 805 N.Y.S.2d 354, 381 (App. Div. 2005) (Saxe, J., dissenting).
160. COUNCIL ON FAMILY LAW, supra note 28, at 12-13. For more on the meanings and purposes of man-woman marriage beyond those comprising the close personal relationship model,
161. see Gallagher, Does Sex Make Babies?, supra note 5, at 451-71;
162. Gallagher, Reply, supra note 5, at 43-51;
163. Stewart, Judicial Elision, supra note 5, at 16-20;
164. Stewart, Redefinition, supra note 5, at 41-57.
165. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 995-96 (Mass. 2003) (Cordy, J., dissenting);
166. see also Gallagher, Does Sex Make Babies?, supra note 5, at 451 ("[T]he justification for legal preferences for marriage for couples attracted to the opposite sex rests on three [factual] assertions: sex makes babies; society needs babies; and children need mothers and fathers. Marriage is about uniting these three dimensions of human social life.");
167. BLANKENHORN, supra note 28, at 91 ("In all or nearly all human societies, marriage is socially approved sexual intercourse between a woman and a man, conceived both as a personal relationship and as an institution, primarily such that any children resulting from the union are... emotionally, morally, practically, and legally affiliated with both of the parents."). Blankenhorn notes that his definition of marriage "rests on a large and growing mountain of scholarly evidence. It incorporates widely shared conclusions about the meaning of marriage reached by the leading anthropologists, historians, and sociologists of the modern era." Id.
168. See Stewart, Redefinition, supra note 5, at 44-46;
169. Morrison v. Sadler, 821 N.E.2d 15, 30 (Ind. Ct. App. 2005) ("The state of Indiana has a legitimate interest in encouraging opposite-sex couples to enter and remain in, as far as possible, the relatively stable institution of marriage.").
170. See INST. FOR AM. VALUES, supra note 6, at 12-32 (listing twenty-six positive social effects of marriage).
171. Stewart, Judicial Elision, supra note 5, at 24 ("Given the role of language and meaning in constituting and sustaining institutions, two 'coexisting' social institutions known soriety-wide as 'marriage' amount to a factual impossibility.").
172. A society actually has three options: man-woman marriage, genderless marriage, or no normative marriage institution at all. Stewart, Washington and California, supra note 5, at 510, n.40. Among elites worldwide, the third option has many effective advocates, and the Americans in their midst "came out of the closet" in July 2006 with the Beyond Same-Sex Marriage manifesto.
173. See Beyondmarriage.org, Beyond Same-Sex Marriage: A New Strategic Vision for All Our Families & Relationships (July 26, 2006), available at http://www.beyondmarriage.org/ BeyondMarriage.pdf. Although the contemporary American political reality is limited to the first two options, 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.
174. See Stanley Kurtz, The Confession, NATIONAL REVIEW ONLINE, Oct. 31, 2006, http://author.nationalreview. com/ (follow "Stanley Kurtz Archive" hyperlink; then follow "The Confession" hyperlink);
175. Stanley Kurtz, The Confession II, NATIONAL REVIEW ONLINE, NOV. 1, 2006, http://author.nationalreview.com/ (follow "Stanley Kurtz Archive" hyperlink; then follow "The Confession II" hyperlink). The prospect of having no normative marriage institution whatsoever, then, may well be nearer than now appears.
176. See JOHN R. SEARLE, THE CONSTRUCTION OF SOCIAL REALITY 32 (1995): [W]e can say, for example, in order that the concept "money" apply to the stuff in my pocket, it has to be the sort of thing that people think is money. If everybody stops believing it is money, it ceases to function as money, and eventually ceases to be money.... [I]n order that a type of thing should satisfy the definition, in order that it should fall under the concept of money, it must be believed to be, or used as, or regarded as, etc., satisfying the definition.... And what goes for money goes for elections, private property, wars, voting, promises, marriages, buying and selling, political offices, and so on.
177. See, e.g., Seana Sugrue, Soft Despotism and Same-Sex Marriage, in THE MEANING OF MARRIAGE: FAMILY, STATE, MARKET, AND MORALS 172, 180-81, 186-91 (Robert P. George & Jean Bethke Elshtain eds., 2006) ("Being entirely a creation of the state [the genderless marriage institution] is an institution that needs to be coddled, and which demands cocooning to protect it. Its very fragility demands a culture in which it is protected.").
178. RAZ, supra note 40, at 161;
179. cf. DeCoste, Transformation, supra note 5, at 635.
180. See Stewart, Redefinition, supra note 5, at 84-85.
181. See Stewart, Judicial Elision, supra note 5, at 36-37.
182. See id. at 52 n.137.
183. See id. at 4.
184. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 961 (Mass. 2003).
185. Hernandez v. Robles, 794 N.Y.S.2d 579, 609 (Sup. Ct. 2005),
186. rev'd 805 N.Y.S.2d 354 (App. Div. 2005),
187. off d, 855 N.E.2d 1 (N.Y. 2006).
188. Goodridge, 798 N.E.2d at 948.
189. Brief of Plaintiffs-Appellants at 21, Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) (No. SJC-08860).
190. Goodridge, 798 N.E.2d at 954 ("Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family.").
191. Brief of Appellants at 3, Lewis v. Harris, 908 A.2d 196 (N.J. 2006) (No. 58,398).
192. Brief of Plaintiffs-Appellants, supra note 60, at 21.
193. Halpern v. Canada, [2003] 172 O.A.C 276, 281-82, ¶ 5 (Ont. Ct. App.).
194. LINDA C. MCCLAIN, THE PLACE OF FAMILIES: FOSTERING CAPACITY, EQUALITY, AND RESPONSIBILITY 6 (2006).
195. See Tobin A. Sparling, All in the Family: Recognizing the Unifying Potential of Same-Sex Marriage, 10 LAW & SEXUALITY 187, 191-92 (2001).
196. Halpern, 172 O.A.C. at 281-82, ¶ 5.
197. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 955-56 (Mass. 2003).
198. Gay & Lesbian Advocates & Defenders, Protections and Responsibilities of Marriage, http://www.glad.org/rights/OP2- protectionsbenefits.shtml (last visited Jan. 2, 2008).
199. Lambda Legal Defense & Education Fund, Why Marriage Equality Matters (May 10, 2004), http://www.lambdalegal.org/our-work/publications/ facts-backgrounds/page.jsp?itemID=31988962.
200. See Liz Seaton, The Debate Over the Denial of Marriage Rights and Benefits to Same-Sex Couples and Their Children, 4 MD. L.J. RACE, RELIGION, GENDER, & CLASS 127,136-37 (2004).
201. See Madeline Marzano-Lesnevich & Galit Moskowitz, In the Interest of Children of Same-Sex Couples, 19 J. AM. ACAD. MATRIMONIAL LAW 255, 268-70 (2005).
202. See Eleanor Michael, Note, Approaching Same-Sex Marriage: How Second Parent Adoption Cases Can Help Courts Achieve the "Best Interests of the Same-Sex Family," 36 CONN. L. REV. 1439, 1440-41 (2004).
203. See Lauren Schwartzreich, Restructuring the Framework for Legal Analyses of Gay Parenting, 21 HARV. BLACKLETTER L.J. 109 (2005);
204. Michael S. Wald, Same-Sex Couple Marriage: A Family Policy Perspective, 9 VA. J. SOC. POL'Y & L. 291 (2001).
205. William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting, and America's Children, 15 FUTURE CHILD. 97, 97 (2005).
206. See Press Release, American Civil Liberties Union, Maryland Psychologists, Social Workers, and Child Welfare Advocates Speak Out in Support of Marriage for Same-Sex Couples (Nov. 30, 2006), available at http://www.aclu.org/ lgbt/relationships/27548prs20061130.html.
207. This is the rather famous "conservative case for gay marriage." See Andrew Sullivan, The Conservative Case for Gay Marriage, TIME, June 30, 2003, at 76;
208. Andrew Sullivan, Here Comes the Groom, THE NEW REPUBLIC, Aug. 28, 1989, at 20;
209. see also WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED COMMITMENT (1996).
210. See Hernandez v. Robles, 805 N.Y.S.2d 354, 377 (App. Div. 2005) (Saxe, J., dissenting) ("Civil marriage is an institution created by the state ....").
211. Andersen v. King County, 138 P.3d 963, 1018 (Wash. 2006) (Fairhurst, J., dissenting).
212. See Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 948 (Mass. 2003) ("The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny... civil marriage to two individuals of the same sex.... The Massachusetts Constitution affirms the dignity and equality of all individuals.");
213. id. at 949 ("Barred access to ... civil marriage, a person... is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principle of respect for individual autonomy and equality under law.");
214. id. at 959 ("The individual liberty and equality safeguards of the Massachusetts Constitution protect both 'freedom from' unwarranted government intrusion into protected spheres of life and 'freedom to' partake in benefits created by the State for the common good.").
215. See id. at 969 (noting that refining the common-law meaning of marriage through judicial remedy "is entirely consonant with established principles of jurisprudence empowering a court to refine a common-law principle" while still "leav[ing] intact the Legislature's broad discretion to regulate marriage.").
216. See, e.g., Nicholas Bala, The Debates About Same-Sex Marriage in Canada and the United States: Controversy Over the Evolution of a Fundamental Social Institution, 20 BYU J. PUB. L. 195, 228 (2006) ("Marriage is one of the oldest, most universal and important of sodal and legal institutions. It has, however, dramatically changed over the course of recorded history, and today there is great variation around the world in the laws and mores of marriage in different countries.").
217. See id. at 202-03.
218. See id. at 201-02.
219. Id. at 198.
220. See id. at 199, 202-09.
221. BLANKENHORN, supra note 28, at 155-56. The Canadian parliamentary enactment mandating genderless marriage contains several provisions containing the term "legal parent" and, in that way, the statute replaces natural parenthood with legal parenthood.
222. See also Civil Marriage Act, 2005 S.C., ch. 33, §§6(1), 10(1)-(3), 11, 12(1) (Can.).
223. Bala, supra note 80, at 202-03.
224. Id. at 209.
225. Andersen v. King County, 138 P.3d 963, 1032 (Wash. 2006) (Bridge, J., dissenting).
226. Id. at 1034.
227. Id. at 1035.
228. See, e.g., Brief for Religious Organizations as Amici Curiae Supporting Plain-tiffs-Appellants at 10-13, Samuels v. Dep't of Pub. Health, 811 N.Y.S.2d 136 (App. Div. 2006), available at http://www.aclu.org/ FilesPDFs/samuels_religious.pdf.
229. Andersen v. King County, 138 P.3d 963, 1027-28 (Wash. 2006) (Bridge, J., dissenting) (quoting Brief for Libertarian Party of Washington State et al. as Amici Curiae Supporting Respondents at 11, available at http://marriagelaw.cua.edu/Law/ states/Washington%20State/ Amici%20Curiae%20Brief%20of%20the%20Libertaria n%20Party%20of%20Washington%20State;%20Log%20Cabin%20Republicans%20 of%20Washington.pdf).
230. See Barbara J. Cox, Are Same-Sex Marriage Statutes the New Anti-Gay Initiatives?, 2 NAT'L. J. OF SEXUAL ORIENTATION L. 194 (1996), available at http://www.ibiblio.org/ gaylaw/issue4/cox3.html.
231. See, e.g., Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 968 (Mass. 2003) ("The absence of any reasonable relationship between ... an absolute disqualification of same-sex couples who wish to enter into civil marriage and ... protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are... homosexual.");
232. Isabel Medina, Of Constitutional Amendments, Human Rights and Same-Sex Marriages, 64 LA. L. REV. 459, 474 (2004) ("Ultimately, it is hard to argue that opposition to same-sex marriage is not about animus or moral disapprobation of lesbian and gay individuals and couples.").
233. See Stewart, Washington and California, supra note 5, at 508-09, 527-31.
234. COUNCIL ON FAMILY LAW, supra note 28, at 14.
235. Id.
236. Id. at 15.
237. Id.
238. MCCLAIN, supra note 63, at 6.
239. Id.
240. Hernandez v. Robles, 805 N.Y.S.2d 354, 381 (App. Div. 2005) (Saxe, J., dissenting).
241. The always implicit "no more than" notion is examined in detail in the longer version of this Article found online, Monte Neil Stewart, Marriage Facts and Critical Morality 35-44, http://marriagelawfoundation. org/mlf/publications/ Facts.pdf
242. [hereinafter Stewart, Long Version]. This phenomenon merits close examination for two reasons. First, the notion itself goes to the heart of the veradty of the narrow and broad descriptions; if the "no more than" notion is factually accurate, it must follow that what the broad description depicts beyond the narrow description's scope is factually false. Conversely, if the "no more than" notion is erroneous as a matter of fact, that error would be established by the validation of the broad description's additional depictions. Second, if-as demonstrated else where - the "no more than" notion is always or nearly always implicit and therefore not expressly stated and defended, that aspect is also important. Id. It is im portant because it constitutes probative evidence about how defensible the "no more than" notion is.
243. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 961 (Mass. 2003) ("While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.").
244. COUNCIL ON FAMILY LAW, supra note 28, at 14.
245. Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66 J. MARRIAGE & FAM. 848, 853, 858 (2004) (reporting both that the "pure relationship is not tied... to the desire to raise children" and that scholarly "attempts to incorporate children into the pure relationship are unconvincing").
246. This Article does not deal with all marriage facts, but only those used by each side of the marriage debate in briefs, judicial opinions, and the scholarly pieces on the cases addressing this issue. It seems fair to limit the search for responses to the same sources.
247. The judges in favor of judicially-mandated genderless marriage uniformly acknowledge this reality. Stewart, Judicial Redefinition, supra note 5, at 75;
248. Stewart, New York, supra note 5, at 231;
249. Stewart, Washington and California, supra note 5, at 517.
250. In making his case for genderless marriage, Ronald Dworkin acknowledges, "The institution of marriage is unique; it is a distinct mode of association and commitment that carries centuries and volumes of sodal and personal meaning." RONALD DWORKIN, IS DEMOCRACY POSSIBLE HERE? 86 (2006).
251. See supra note 108.
252. These demographic studies have been addressed elsewhere at some length. See Stewart, Long Version, supra note 103, at 45-47;
253. Stewart, Washington and California, supra note 5, at 532-34.
254. Ron Lesthaeghe & Lisa Neidert, The Second Demographic Transition in the United States: Exception or Textbook Example?, 32 POPULATION & DEV. REV. 669 (2006).
255. See supra note 110.
256. See William C. Duncan, Marriage Amendments and the Reader in Bad Faith, 7 FLA. COASTAL L. REV. 233, 233-34 nn.2-3 (2005) (collecting citations to statutes and amendments defining marriage as the union of a man and a woman).
257. Hernandez v. Robles, 805 N.Y.S.2d 354, 381 (App. Div. 2005) (Saxe, J., dissenting).
258. SEARLE, supra note 48, at 57.
259. 4,558,000 people married in the United States in 2004. Subtracting the people who married in Massachusetts (83,098), the number would be 4,474,902. CTRS. FOR DISEASE CONTROL & PREVENTION, BIRTHS, MARRIAGES, DIVORCES, AND DEATHS: PROVISIONAL DATA FOR 2004, 53 NAT'L VITAL STAT. REP. NO. 21, at 1, 6 (2005), available at http://www.cdc.gov/nchs/data/nvsr/nvsr53/nvsr53_21.pdf.
260. The National Marriage Project report for 2005 states: "For the generation of 1995, assuming a continuation of then current marriage rates, several demographers projected that 88 percent of women and 82 percent of men would ever marry." NAT'L MARRIAGE PROJECT, THE STATE OF OUR UNIONS 2005: THE SOCIAL HEALTH OF MARRIAGE IN AMERICA 16-17 (2005), available at http://marriage.rutgers.edu/publications/soou/ soou2005.pdf.
261. The births to married women in 2004 were 64.2 percent of all births. JOYCE A. MARTIN ET AL., CTRS. FOR DISEASE CONTROL & PREVENTION, BIRTHS: PRELIMINARY DATA FOR 2004, 55 NAT'L VITAL STAT. REP. NO. 1,11 (2006), available at http://www.cdc.gov/nchs/data/nvsr/nvsr55/nvsr55_01.pdf. For a discussion of the key statistics, tracking the strength of the American marriage institution since 1970,
262. see BLANKENHORN, supra note 28, at 217-22.
263. COUNCIL ON FAMILY LAW, supra note 28, at 14-15 (footnotes omitted).
264. Id. at 14.
265. See, e.g., BLANKENHORN, supra note 28, at 91 ("[Marriage] is constantly evolving, reflecting the complexity and diversity of human cultures.");
266. MCCLAIN, supra note 63, at 21 ("The long history of the institution of marriage offers an evolving, rather than a static, answer to the question 'What is marriage fori' ").
267. See, e.g., MCCLAIN, supra note 63, at 22-23;
268. COUNCIL ON FAMILY LAW, supra note 28, at 14-15;
269. Bala, supra note 80, at 201-09;
270. see also Stewart, Redefinition, supra note 5, at 86-95.
271. See Stewart, Judicial Elision, supra note 5, at 4;
272. see also Stewart, Dworkin, supra note 5, at 302n.121.
273. Most participants in the marriage debate do not publicly embrace the radical social constructionist conclusions that the differences between men and women do not (or should not) matter in the eyes of the law, that the prior legal changes in marriage reflect and enshrine that first conclusion, and that, therefore, there is no defensible basis under equality jurisprudence for defining civil marriage as a man-woman relationship rather than a person-person relationship. See Stewart, Redefinition, supra note 5, at 86-95.
274. The answer often implied and sometimes given expressly-"Because the changes show that genderless marriage is inevitable"- is not a good answer, for several reasons (see BLANKENHORN, supra note 28, at 235-36, 239-40, for a collection of examples of the inevitability argument). First, that answer presupposes that a judge's constitutional duty is to perceive social trends and then to move the law in front of those trends. No serious student of constitutional law publicly champions such a formulation of the judicial duty, although a few judges have given hints of such a mandate.
275. See, e.g., Hernandez v. Robles, 855 N.E.2d 1, 34 (N.Y. 2006) (Kaye, C.J., dissenting) ("I am confident that future generations will look back on today's decision as an unfortunate misstep."). Second, the assertion of inevitability-founded on a confidently made reading of where social currents in history will certainly carry the marriage institution - is a dubious intellectual proposition; it would seem to be worthy of about the same level of respect due to another message of inevitability clearly to be perceived in powerful social currents revealed by history, the message preached by Karl Marx. Third, a particularly toxic aspect of the inevitability argument in the judicial arena is its proclivity to become a self-fulfilling prophecy. Each judge who acts on the basis of the argument supplies further "evidence" of the inevitability of genderless marriage. In this context it merits mentioning that, but for EGALE Canada Inc. v. Canada (Attorney General), [2003] 13 B.C.L.R. (4th) 1 (B.C. Ct. App.), and Holpern v. Canada, [2003] 172 O.A.C. 276 (Ont. Ct. App.), there would be no genderless marriage in Canada today, and but for Goodridge, there would be no genderless marriage anywhere in the United States today. See Stewart, Judicial Elision, supra note 5, at 63-64.
276. See Stewart, Judicial Elision, supra note 5, at 61-70.
277. See id. at 67-68;
278. see also Stewart, Long Version, supra note 103, at 53 n.185 (collecting scholarly artides on the debate about whether no-fault divorce laws and the divorce revolution are causally related or simply correlated and examining the ill effects of the divorce revolution).
279. Professor Coontz asserts that marriage in America has been deinstitutionalized; that is, that no public meanings (formerly) constitutive of the institution are now shared sufficiently widely to have institutional force. Stephanie Coontz, Remarks at UCLA Williams Institute Marriage Debates Conference (Apr. 21-22, 2006); see also BLANKENHORN, supra note 28, at 239.
280. Critics from across the spectrum have questioned Professor Coontz's work. Compare Alan Wolfe, The Malleable Estate: Is marriage more joyful than ever?, SLATE, May 17, 2005, http://www.slate.com/id/2118816,
281. with BLANKENHORN, supra note 28, at 236, 239-40.
282. See Stewart, New York, supra note 5, at 241-2, 247.
283. See, e.g., Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 961 (Mass. 2003).
284. See Stewart, Redefinition, supra note 5, at 44-52.
285. Id. at 62 (emphasis added).
286. Id. at 50-52;
287. Gallagher, Does Sex Make Babies?, supra note 5, at 454-56.
288. Gallagher, Does Sex Make Babies?, supra note 5, at 454-55.
289. In a recent article, Professor McClain argues that certain legal and cultural changes in American society have eliminated, as a legal and social project, the channeling of sex into marriage. Linda McClain, Loi;e, Marriage, and the Baby Carriage: Revisiting the Channeling Function of Family Law, 28 CARDOZO L. REV. 2133 (2007).
290. For a critique of her argument, see Stewart, Long Version, supra note 103, at 56n.193.
291. Stewart, Redefinition, supra note 5, at 58-60.
292. See, e.g., Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 961-62 n.23 (Mass. 2003).
293. Indeed, genderless marriage proponents must either concede the factual accuracy of the broad description or remain silent. It is impossible as a matter of fact to sustain the case for the completeness, and therefore fundamental accuracy, of the narrow description. The evidence ... shows overwhelmingly - I believe beyond any reasonable doubt - that marriage as a human institution is intrinsically connected to bearing and raising children. To argue otherwise is to argue like a lawyer looking for a loophole; it is not intellectually or morally serious .... BLANKENHORN, supra note 28, at 153.
294. See infra Part II.C.2.a.
295. For collections of these bald assertions, see Stewart, Redefinition, supra note 5, at 97-98;
296. Stewart, New York, supra note 5, at 232, 247;
297. Stewart, Washington and California, supra note 5, at 528-29.
298. Hernandez v. Robles, 805 N.Y.S.2d 354, 381 (App. Div. 2005) (Saxe, J., dissenting).
299. In re Marriage Cases, 49 Cal. Rptr. 3d 675, 737 (Ct. App. 2006) (Kline, J., concurring in part and dissenting in part).
300. Id. at 740.
301. Id. at 748 (emphasis added).
302. Judge Kline seems to grasp that a judge's power over facts is constrained, unlike her power to determine relevancy and irrelevancy. Professor Linda McClain seems to move toward a similar strategy in her recent book, The Place of Families. See MCCLAIN, supra note 63, at 21-22.
303. In re Marriage Cases, 49 Cal. Rptr. 3d at 748 (Kline, J., concurring in part and dissenting in part).
304. See, e.g., Lehr v. Robertson, 463 U.S. 248, 256-57 (1983) ("The institution of marriage has played a critical role both in defining the legal entitlements of family members and in developing the decentralized structure of our democratic society. ... [A]s part of their general overarching concern for serving the best interests of children, state laws almost universally express an appropriate preference for the formal family."); Quillion v. Walcott, 434 U.S. 246, 256 (1978) ("[L]egal custody of children is, of course, a central aspect of the marital relationship, and even a father whose marriage has been broken apart will have borne full responsibility for the rearing of his children during the period of the marriage," with his marriage thus reflecting his "commitment to the welfare of the child."); Zablocki v. Redhail, 434 U.S. 374, 397 (1978) (Powell, J., concurring in judgment) ("On several occasions, the Court has acknowledged the importance of the marriage relationship to the maintenance of values essential to organized society."); Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 843-44 (1977) ("The basic foundation of the family in our society [is] the marriage relationship [and]... its importance has been strongly emphasized in our cases.... Thus the importance of the familial relationship, to the individuals involved and to the society, stems from... the role it plays in 'promot[ing] a way of life' through the instruction of children....") (quoting Wisconsin v. Yoder, 406 U.S. 205, 231-33 (1972)); Poe v. Ullman, 367 U.S. 497, 546 (1961) (Harlan, J., dissenting) ("The laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up, as well as laws forbidding adultery, fornication and homosexual practices which express the negative of the proposition, confining sexuality to lawful marriage, form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis."); Williams v. North Carolina, 317 U.S. 287, 298 (1942) ("The marriage relation creates problems of large social importance. Protection of offspring, property interests, and the enforcement of marital responsibilities are but a few of [the] commanding problems ....").
305. The constitutional equation seeks to value and appropriately accommodate both individual rights and societal (governmental) interests - a task that is particularly crucial relative to marriage and family. "As family law scholars observe, there are two sometimes conflicting vantage points from which to regard families: one looks at the individual's interest in family life, the other at society's interest in the family (and in marriage) as social institutions." MCCLAIN, supra note 63, at 22;
306. see also HAFEN, supra note 7, at 469.
307. See Stephen E. Gottlieb, The Paradox of Balancing Significant Interests, 45 HASTINGS L.J. 825, 828, 866 (1994);
308. Roscoe Pound, A Survey of Social Interests, 57 HARV. L. REV. 1, 3-4 (1943).
309. See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003) (holding that although classifications based on race and ethnic origins are suspect and therefore subject to strict scrutiny, governmental interests in attaining a diverse student body at the university level are sufficiently compelling to render the university's "affirmative action" program constitutional).
310. See infra Part II.C.2.C.
311. The dissenting opinion in the California Court of Appeal rather clearly refuses to credit, and criticizes the majority opinion for crediting, the many attributes, meanings, norms, practices, and social goods inhering in the man-woman marriage institution and extending beyond what the close personal relationship model allows. See In re Marriage Cases, 49 Cal. Rptr. 3d 675, 736-49 (Ct. App. 2006) (Kline, J., concurring in part and dissenting in part);
312. see also Stewart, Wasnington and California, supra note 5, at 530-31.
313. Examples of the "no-downside" argument in judicial opinions are collected in Stewart, Redefinition, supra note 5, at 35-36;
314. Stewart, Washington and California, supra note 5, at 519-25.
315. Stewart, Redefinition, supra note 5, at 36.
316. See supra text accompanying notes 18-56.
317. See supra text accompanying note 26.
318. See supra notes 73-74 and accompanying text.
319. Another purpose is to affirm the equal capacity of gay men and lesbians to perform a socially valued task-child-rearing-as part of a larger project to enhance social acceptance and self-regard.
320. See, e.g., THE WITHERSPOON INST., supra note 27, at 21-43;
321. INST, FOR AM. VALUES, RESEARCH BRIEF. NO. 1, FAMILY STRUCTURE AND CHILDREN'S EDUCATIONAL OUTCOMES (2005);
322. Paul R. Amato, The Impact of Family Formation Change on the Cognitive, Social, and Emotional Well-Being of the Next Generation, 15 FUTURE OF CHILD. 75 (2005);
323. see also LORRAINE BLACKMAN ET AL., INST, FOR AM. VALUES, CONSEQUENCES OF MARRIAGE FOR AFRICAN AMERICANS: A COMPREHENSIVE LITERATURE REVIEW 4-5 (2005);
324. William C. Duncan, The Social Good of Marriage and Legal Responses to Non-Marital Cohabitation, 82 OR. L. REV. 1001 (2003).
325. See supra note 159 and accompanying text.
326. See id.
327. See NORVAL GLENN & THOMAS SYLVESTER, THE DENIAL: DOWNPLAYING THE CONSEQUENCES OF FAMILY STRUCTURE FOR CHILDREN, INST. FOR AM. VALUES (2005), available at http://www.familyscholarslibrary.org/content/readingrooms/ denial. Although the correlations showing married mother-father child-rearing as the optimal mode are uncontroversial (except presently relative to same-sex couple child-rearing), inferences regarding causation and reasons are not; that is because of the difficulties of controlling for a rather long list of possible variables besides just the basic structure of the respective modes. But because the correlations established between various child-rearing modes and favorable outcomes (for two examples, high academic achievement and low crime) show the married mother-father mode as optimal, policy makers rationally can, with due caution, infer causation and, in turn, rationally privilege man-woman marriage.
328. Affidavit of Steven Lowell Nock, Halpem v. Attorney General, Ontario Superior Court of Justice, File 684/00, available at http://www. marriagewatch.org/Law/cases/Canada/ontario/halpern/aff_nock.pdf.
329. Id. Leading, qualified proponents of genderless marriage have acknowledged the validity of the good-science requirements, and also the validity of Professor Nock's conclusion regarding the failure of the "no differences" studies. See William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting, and America's Children, 15 FUTURE OF CHILD. 97, 104 (2005) ("We do not know how the normative child in a same-sex family compares with other children. . . .Those who say the evidence falls short of showing that same-sex parenting is equivalent to opposite-sex parenting (or better, or worse) are ... right.");
330. Judith Stacey & Timothy J. Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66 AM. SOC. REV. 159, 166 (2001).
331. See Declaration of Alan J. Hawkins as Expert Witness for Defendant at 8-9, Varnum v. Brien, No. CV 5965 (Iowa Dist. Ct. Mar. 15, 2007), available at http://manwomanmarriage.org/jrm/pdf/Alan_Hawkins.pdf.
332. Am. Acad, of Pediatrics, Coparent or Second-Parent Adoption by Same-Sex Parents, 109 PEDIATRICS 339 (2002), available at http://aappolicy.aappublications.org/cgi/reprint/pediatrics;109/2/339.pdf.
333. AM. PSYCHIATRIC ASS'N, APA DOC. REF. NO. 200214, ADOPTION AND COPARENTING OF CHILDREN BY SAME-SEX COUPLES POSITION STATEMENT 1, (2002), available at http://www.psych.org/edu/other-res/lib-archives/archives/200214.pdf.
334. AM. PSYCHOLOGICAL ASS'N, RESOLUTION ON SEXUAL ORIENTATION, PARENTS AND CHILDREN (2004), available at http://www.apa.org/pi/lgbc/policy/ parentschildren.pdf.
335. See AM. ACAD, OF CHILD AND ADOLESCENT PSYCHIATRY, GAY, LESBIAN, AND BISEXUAL PARENTS POLICY STATEMENT (1999), http://www.aacap.org/cs/root/policy_statements/ gay_lesbian_and_bisexual_parents_policy_statement.
336. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
337. Id. at 979-80 (Sosman, J., dissenting).
338. Id.
339. See supra notes 35-40 and accompanying text. Man-woman marriage proponents base their assertion on two arguments: (1) different institutionalized meanings intend and sustain different social selves; and (2) the genderless marriage institution cannot provide a number of social goods uniquely provided by man-woman marriage and, indeed, will effectively preclude some of them.
340. See Stewart, Judicial Elision, supra note 5, at 15-24.
341. Genderless marriage proponents' presentations of the narrow description of contemporary marriage and of the "no differences" assertion regarding childrearing are a form of indirect engagement. The absence of direct engagement may be because observers of marriage who are both rigorous and well-informed regarding the realities of social institutions (including some genderless marriage proponents) uniformly acknowledge the magnitude of the differences between the two possible institutions of marriage. See supra note 40 and accompanying text.
342. See Goodridge, 798 N.E.2d at 941; Halpern v. Canada, [2003] 172 O.A.C. 276 (Ont. Ct. App.); EGALE Canada Inc. v. Canada (Attorney General), [2003] 13 B.C.L.R. (4th) 1 (B.C. Ct. App.). The Quebec Court of Appeal also mandated genderless marriage but did so on grounds akin to the doctrine of collateral estoppel. Hendricks v. Quebec (Attorney General), [2004] 238 D.L.R. (4th) 577 (Que. C.A.).
343. See Stewart, Redefinition, supra note 5, at 77-78.
344. Id.
345. Id.
346. 798 N.E.2d at 965.
347. See Halpern v. Canada, [2003] 172 O.A.C. 276, 304, ¶¶ 133-34 (Ont. Ct. App.).
348. Indeed, the plurality opinion in Goodridge begins: "Marriage is a vital social institution." 798 N.E. 2d at 948. The opinions in that case then go on to refer to "institution" in the context of marriage over 80 times. Halpern has more than 40 such references; EGALE has more than 35.
349. See BLANKENHORN, supra note 28, at 139. With respect to the importance of "marriage's public meaning... for people interested in institutions and social change, public meaning is everything. AU the rest flows from it."
350. Id.
351. Stewart, Judicial Elision, supra note 5, at 35.
352. For a critique of the evidence advanced in Halpern and Goodridge to support their "no change" conclusion, see id. at 35-36.
353. See, e.g., Goodridge, 798 N.E.2d at 962; Halpern v. Canada, [2003] 172 O.A.C. 276, 298,_94 (Ont. Ct. App.).
354. Lewis v. Harris, 875 A.2d 259, 278 (N.J. Super. Ct. App. Div. 2005) (Parrillo, J., concurring) (citing Monte Neil Stewart, Judicial Redefinition of Marriage, 21 CAN. J. FAM. L. 80 (2004)).
355. For a strong rejection of the "impotent law" argument by a leading scholar on historical and contemporary marriage in America, see Nancy F. Cott, The Power of Government in Marriage, 11 THE GOOD SOCIETY 88 (2002).
356. See supra Part II.A.
357. See Stewart, Judicial Elision, supra note 5, at 37-38;
358. Stewart, New York, supra note 5, at 251-53;
359. and Stewart, Washington and California, supra note 5, at 525-36.
360. Goodridge, 798 N.E.2d at 962.
361. Id. at 964.
362. See Stewart, Redefinition, supra note 5, at 83-85.
363. See supra notes 175-87 and accompanying text.
364. See Stewart, Redefinition, supra note 5, at 85;
365. Stewart, Judicial Elision, supra note 5, at 46-49, 52 n.137.
366. In fact, every American appellate court judge who has ruled in favor of genderless marriage has also adopted the close personal relationship model. See Stewart, Washington and California, supra note 5, at 527-28;
367. Stewart, New York, supra note 5, at 246-47.
368. In addition, that connection is also evident in the larger social-cultural sphere. See supra notes 110-18 and accompanying text.
369. To repeat Professor Cherlin's conclusions: the close personal relationship model describes "an intimate partnership entered into for its own sake, which lasts only as long as both partners are satisfied with the rewards (mostly intimacy and love) that they get from it." Cherlin, supra note 106, at 853. "The pure relationship is not tied ... to the desire to raise children,"
370. id.,
371. and scholarly "attempts to incorporate children into the pure relationship are unconvincing," id. at 858.
372. E.g., Brief for Religious Organizations as Amici Curiae Supporting Plaintiffs-Appellants at 10-13, Samuels v. Dep't of Pub. Health, 811 N.Y.S.2d 136 (App. Div. 2006), available at http://www.aclu.org/FilesPDFs/ samuels_religious.pdf;
373. see DeCoste, Leviathan, supra note 5, at 1102-03.
374. See, e.g., Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 954 (Mass. 2003) ("We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage.... [Cjivil marriage is ... precisely what its name implies: a wholly secular institution."); Hernandez v. Robles, 805 N.Y.S.2d 354, 377 (App. Div. 2005) (Saxe, J., dissenting) ("Civil marriage is an institution created by the state...."); Andersen v. King County, 138 P.3d 963, 1018 (Wash.
375. 2006) (Fairhurst, J., dissenting) ("[T]he exdusionary language [that is, a man-woman meaning]... does not lend the institution of marriage its power. Rather, marriage draws its strength from the nature of the civil marriage contract itself and the recognition of that contract by the State."); id. at 1034 (Bridge, J., dissenting) ("Cvil marriage is a stateconferred legal status, the existence of which gives rise to benefits and burdens reserved exclusively to the citizens engaged in the marital relationship.");
376. see also DeCoste, Leviathan, supra note 5, at 1102-04;
377. Stewart, New York, supra note 5, at 243-46;
378. Stewart, Washington and California, supra note 5, at 536.
379. See Stewart, Washington and California, supra note 5, at 537-38.
380. E.g., Andersen v. King County, 138 P.3d 963, 1027-28, 1035 (Wash. 2006) (Bridge, J., dissenting) ("To ban gay civil marriage because some... religions disfavor it reflects an impermissible State religious establishment....The impugned man-woman marriage law reflects a religious viewpoint [and that] religious doctrine should not govern state regulation of civil marriage.") (internal quotation marks omitted).
381. See, e.g., supra note 197.
382. For a discussion of the antiquity of the marriage institution, see BLANKENHORN, supra note 28, at 9.
383. For a discussion of its universality, see id. at 105-06.
384. See SUGRUE, supra note 49, at 176.
385. See, e.g., BLANKENHORN, supra note 28, at 123-24.
386. See, e.g., DeCoste, Leviathan, supra note 5, at 1113.
387. See Richard W. Garnett, Taking Pierce Seriously: The Family, Religious Education, and Harm to Children, 76 NOTRE DAME L. REV. 109,114 n.29 (2000).
388. It is a commonplace that, although marriage interacts with other important social institutions, it remains meaningfully distinct from them. See, e.g., Celia Kitzinger & Sue Wilkinson, The Re-branding of Marriage; Why We Got Married Instead of Registering a Civil Partnership, 14 FEMINISM & PSYCHOL. 127,132 (2004) ("Marriage is a lynchpin of social organization: its laws and customs interface with almost every sphere of social interaction.");
389. Sullivan, supra note 20, at 173 ("[T]he realm of civil society is itself deeply interconnected with market and state, both through the market processes that sustain the lives of families, organizations, and associations of all kinds and by the state in the form of law, regulation, and direct subsidy.").
390. See, e.g., SEARLE, supra note 48, at 32. In David Blankenhorn's words: No one denies that property and social status (and many other big realities as well) affect all spheres of human social life, from education to medicine to, yes, marriage. But what affects something is different from the thing itself. For almost all of humanity, marriage has always and in all places been "really" about the male-female sexual bond and the children that result from that bond.
391. BLANKENHORN, supra note 28, at 55 (emphasis added).
392. CLAYTON, supra note 20, at 22.
393. See supra note 50 and accompanying text.
394. For a rejection of the idea that religion is the source of the man-woman meaning of marriage, see BLANKENHORN, supra note 28, at 159-60.
395. The rational basis standard of review requires a judge to sustain a law (or other form of state action) against constitutional challenge if there is any conceivable basis which might support it; "empirical support is not even necessary." Nguyen v. INS, 533 U.S. 53, 76 (2001) (O'Connor, J., dissenting). Moreover, "[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not the basis has a foundation in the record." Id. at 75 (internal quotation marks omitted). Under heightened scrutiny, a state seeking "to defend a statute ... must carry the burden of showing an exceedingly persuasive justification" and can meet this burden "only by showing at least that the classification serves important governmental objectives and that the ... means employed are substantially related to the achievement of those objectives."
396. Id. at 74-75 (internal quotation marks omitted). Under strict scrutiny, the government has the burden of proving that the challenged law "[is] narrowly tailored ... [to] further [a] compelling governmental interest." Johnson v. California, 543 U.S. 499, 505 (2005) (internal question marks omitted). The concept of narrow tailoring is also expressed in terms of what would be "overinclusive" or "underindusive."
397. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 578 (1993) (Blackmun, J., concurring) ("A State may no more create an underindusive statute, one that fails truly to promote its purported compelling interest, than it may create an overinclusive statute, one that encompasses more proterted conduct [or burdens more people] than necessary to achieve its goal.").
398. Gerald Gunther, In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972).
399. See, e.g., McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 346-49 (1995);
400. Richmond v. J. A. Croson Co., 488 U.S. 469, 506-08 (1989);
401. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 298-303 (1978).
402. But see Adarand Constructors v. Pena, 515 U.S. 200, 237 (1995) ("Finally, we wish to dispel the notion that strict scrutiny is 'strict in theory, but fatal in fact.'").
403. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 996 (Mass. 2003) (Cordy, J., dissenting).
404. See supra notes 159-161 and accompanying text.
405. See supra note 25.
406. See supra notes 159-161 and accompanying text.
407. See DeCoste, Transformation, supra note 5, at 625-27.
408. See Blankenhorn, supra note 28, at 145;
409. see also INST. FOR AM. VALUES, supra note 6;
410. LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY (2000).
411. See generally Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 578 (1993) (Blackmun, J., concurring) ("A State may no more create an underindusive statute, one that fails truly to promote its purported compelling interest, than it may create an overinclusive statute, one that encompasses more protected conduct [or burdens more people] than necessary to achieve its goal.").
412. See supra note 4 and accompanying text.
413. See Conaway v. Deane, 2007 WL 2702132, at *51 (Md. Sept. 18, 2007) (Battaglia, J., dissenting);
414. id. at *81 (Bell, C.J., dissenting);
415. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993);
416. id. at 68 (Burns, J., concurring in the judgment).
417. Baker v. Vermont, 744 A.2d 864, 889 (Vt. 1999) (Dooley, J., concurring).
418. Id. at 898 (Johnson, J., concurring in part and dissenting in part).
419. See Adams v. Howerton, 673 F.2d 1036, 1042 (9th Cir. 1980);
420. Standhardt v. Superior Court, 77 P.3d 451, 457 (Ariz. Ct. App. 2003);
421. id. at 727 (Parilli, J., concurring);
422. In re Marriage Cases, 49 Cal. Rptr. 3d 675 (Ct. App. 2006);
423. Dean v. District of Columbia, 653 A.2d 307 (D.C 1995);
424. id. at 361 (Terry, J., concurring);
425. id. at 362 (Steadman, J., concurring);
426. Morrison v. Sadler, 821 N.E.2d 15, 35 (Ind. Ct. App. 2005);
427. id. at 36 (Friedlander, J., concurring);
428. Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973);
429. Conaway v. Deane, 2007 WL 2702132 (Md. Sept. 18, 2007);
430. id. at *40 (Raker, J., concurring in part and dissenting in part);
431. Goodridge v. Dep't. of Pub. Health, 798 N.E.2d 941, 974 (Mass. 2003) (Spina, J., dissenting);
432. id. at 978 (Sosman, J., dissenting);
433. id. at 983 (Cordy, J., dissenting);
434. Baker v. Nelson, 191 N.W.2d 185,187 (Minn. 1971)
435. appeal dismissed for want of a federal question, 409 U.S. 810 (1972);
436. Lewis v. Harris, 875 A.2d 259, 274 (N.J. Super. Ct. App. Div. 2005);
437. id. at 274 (Parrillo, J., concurring);
438. Hernandez v. Robles, 7 N.Y.3d 338 (N.Y. 2006);
439. id. at 366 (Graffeo, J., concurring);
440. id. at 380 (Kaye, C.J., dissenting);
441. Hernandez v. Robles, 805 N.Y.S.2d 354 (App. Div. 2005);
442. id. at 363 (Catterson, J., concurring);
443. id. at 377 (Saxe, J., dissenting);
444. Seymour v. Holcomb, 811 N.Y.S.2d 134 (App. Div. 2006);
445. Kane v. Marsolais, 808 N.Y.S.2d 566 (App. Div. 2006);
446. Samuels v. Dep't. of Pub. Health, 811 N.Y.S.2d 136 (App. Div. 2006);
447. DeSanto v. Barnsley, 476 A.2d 952 (Pa. Super. Ct. 1984);
448. Andersen v. King County, 138 P.3d 963 (Wash. 2006);
449. id. at 991 (Alexander, J., concurring);
450. id. at 991 (J. Johnson, J., concurring);
451. id. at 1028 (Bridge, J., dissenting);
452. id. at 1040 (Chambers, J., dissenting);
453. id. at 1012 (Fairhurst, J., dissenting);
454. Singer v. Hara, 522 P.2d 1187, 1196 (Wash. Ct. App. 1974)
455. review denied, 84 Wash. 2d 1008 (1974).
456. See In re Marriage Cases, 49 Cal. Rptr. 3d 675, 731 (App. 2006) (Kline, J., dissenting);
457. Goodridge v. Dep't. of Pub. Health, 798 N.E.2d 941 (Mass. 2003);
458. id. at 970 (Greaney, J., concurring);
459. Lewis v. Harris, 908 A.2d 196 (N.J. 2006);
460. Lewis v. Harris, 875 A.2d 259, 278 (N.J. Super. Ct. App. Div. 2005) (Collester, J., dissenting);
461. Hernandez v. Robles, 805 N.Y.S.2d 354, 377 (App. Div. 2005) (Saxe, J., dissenting);
462. Andersen v. King County, 138 P.3d 963,1027 (Wash. 2006) (Bridge, J., dissenting);
463. id. at 1040 (Chambers, J., dissenting);
464. id. at 1012 (Fairhurst, J., dissenting).
465. See Lewis v. Harris, 908 A.2d 196 (N.J. 2006);
466. Baker v. Vermont, 744 A.2d 864 (Vt. 1999).
467. See supra notes 110-53 and accompanying text.