Director's Thoughts

The Meaning of Marriage

1. See, e.g., Brigitte Berger, The Social Roots of Prosperity and Liberty, 35 SOC'Y, Mar.-Apr. 1998, at 44.


2. John Gee, The Family in the Third (and Second) Millennium . . . BC: Where We Have Been, in 1 THE FAMILY IN THE NEW MILLENNIUM, WORLD VOICES SUPPORTING THE "NATURAL" CLAN, 114, 118--119 (A. Scott Loveless and Thomas B. Holman ed., 2007) (noting that, based upon Sumerian records dating back to 2500 BC, the "family as we know it historically, and not has some people have recently tried to redefine it, goes back at least as far as we have human records . . . Then, as now, it was based upon monogamous marriage between a man and a woman, with polygynous marriages sometimes being an exception among those who were wealthy and could afford two families;" "[w]hen the family is destroyed, such as at the end of the Hittite Old Kingdom, the impact on society is catastrophic: society ceases to exist as a functioning historical entity") (footnotes omitted).


3. Lynn D. Wardle, A Critical Analysis of Constitutional Claims for Same-Sex Marriage, 1996 BYU L. REV. 1, 29.


4. Marriage has been accorded special protections (and unique status) in virtually every culture around the world. The special status of marriage is particularly clear in the United States. See, e.g., Akiko Kawamura, Neglected Stories: The Constitution and Family Values, 1 J. L. & FAM. STUD. 89, 94 (1999) (book review). The author states:
   

   Justice O'Connor, writing for the majority [in Turner v. Safely], articulated the reasons why marriage is "especially important to constitutional conceptions of liberty and citizenship." First, marriage is a precondition for government benefits like social security. Second, marital status guarantees certain property rights under intestate succession laws. Third, in some states, marriage is a precondition for the legitimacy of children. Lastly, marriage is an expression of commitment that carries "spiritual significance" because it is often "an exercise of religious faith as well as an expression of personal dedication."

   
   Id. (quoting Turner v. Safely, 482 U.S. 78, 96 (1987) (citation omitted)); see also Todd Foreman, Nondiscrimination Ordinance 101: San Francisco's Nondiscrimination in City Contracts and Benefits Ordinance: A New Approach to Winning Domestic Partnership Benefits, 2 U. PA. J. LAB. & EMP. L. 319, 319 n.3 (1999) ("The many benefits of marriage include immigration rights, property rights, tax benefits, and employment benefits such as 'partner insurance coverage, pension survivorship plans, and sick and bereavement leave.'") (quoting Philip S. Horne, Challenging Public- and Private-Sector Benefit Schemes Which Discriminate Against Unmarried Opposite-Sex and Same-Sex Partners, 4 LAW & SEXUALITY 35, 48 (1994) (citation omitted)).


5. See, e.g., Maria Sophia Aguirre, Family, Economics, and the Information Society-How Are They Affecting Each Other?, at http://www.worldcongress.org/gen99_speakers/gen99_aguirere.htm (last visited Aug. 31, 2003) ("For instance, one out of every three children born in the United States and over half of all children in Scandinavia are born out of wedlock").


6. Some of the fiercest criticism regarding the continuing social utility of marriage comes from gay rights activists who seek to "deconstruct" the very concept of marriage. See, e.g., Wardle, supra note 2, at 3 n.2 (noting that both supporters and opponents of same-sex marriage agree "that it could dramatically alter the core social institutions of marriage and the family, as well as gender relations, sexual practices, and general social stability."). Other subtler, but perhaps more damaging, devaluation of marriage comes from modern academicians who consistently cast marriage in a negative light. For example, a recent survey of twenty college textbooks discussing marriage found that "current textbooks convey a determinedly pessimistic view of marriage," repeatedly suggesting "that marriage is more a problem than a solution." Norval D. Glenn, Closed Hearts, Closed Minds: The Textbook Story of Marriage, SOC'Y, Mar.-Apr. 1998, at 69.


7. In re Marriage Cases, S147999, (California Supreme Court, May 15, 2008); See also Article 9 of the European Charter of Fundamental Rights, which commits the European Union to "guarantee the right to marry and the right to found a family in accordance with the national laws governing the exercise of these rights." See Europarl, The Charter of Fundamental Rights of the European Union, at http://www.europral.eu.int/charter/defualt_en.htm. See also, generally, Rainer Arnold, A Fundamental Rights Charter for the European Union 15 TUL. EUR. & CIV. L.F. 43 (2000) (discusses the purposes and origins of the Charter, as well as a description of its attributes and importance to the European "Constitutional Order"). Under Article 9 of the European Charter, suppose that Nation A adopts legislation recognizing same-sex marriage and conferring all of Nation A's spousal social security benefits upon the couple. If a same-sex couple married in Nation A subsequently moves to Nation B, which under its constitution neither recognizes same-sex marriage nor confers social security benefits on such spouses, might not Article 9 of the Charter authorize the European Court of Justice to issue a decision commanding Nation B to recognize the marriage of (and even provide social security benefits to) the couple? After all, without such a decision, Nation B might arguably be denying its new immigrants the "right to marry and the right to found a family" in "accordance" with the laws of Nation A.


8. See, e.g., http://www.aclu.org/lgbt/parenting/11824res19990406.html (asserting, among other things, that "[a]ll of the research to date has reached the same unequivocal conclusion about gay parenting: the children of lesbian and gay parents grow up as successfully as the children of heterosexual parents"). But compare See, e.g., Goodridge v. Dep't of Health, 798 N.E.2d 941, 983 (2003) (Cordy, J., dissenting). After surveying the early findings of sociological research regarding outcomes for children reared in homes with homosexual parents, as well as the critiques of that research, Justice Cordy concludes:
   

   Taking all of this available information into account, the Legislature could rationally conclude that a family environment with married opposite-sex parents remains the optimal social structure in which to bear children, and that the raising of children by same-sex couples, who by definition cannot be the two sole biological parents of a child and cannot provide children with a parental authority figure of each gender, presents an alternative structure for child rearing that has not yet proved itself beyond reasonable scientific dispute to be as optimal as the biologically based marriage norm.

   
   Id. at 999-1000 (Cordy, J., dissenting) (footnote omitted). See also See, e.g., ROBERT LERNER & ALTHEA K. NAGAI, NO BASIS: WHAT THE STUDIES DON'T TELL US ABOUT SAME-SEX PARENTING (Marriage Law Project. Washington D.C. 2001); Judith Stacey & Timothy J. Biblarz, Does the Sexual Orientation of Parents Matter?, 66 AMERICAN SOCIOLOGICAL REVIEW 159, 176 (April 2001) (while the authors continue to support same-sex adoption, they nevertheless discount the assertion that there are "no differences" in outcomes for children raised in same-sex and heterosexual households; "[c]hildren with lesbigay parents appear less traditionally gender-typed and more likely to be open to homoerotic relationships. In addition, evidence suggests that parental gender and sexual identities interact to create distinctive family processes whose consequences for children have yet to be studied").


9. See, e.g., Berger, supra note 1, at 51.The author posits:
   

   Although of late we can witness a public rediscovery of the salutary role of the nuclear family of father, mother, and their children living together and caring for their individual and collective progress, policy elites appear neither to have fully understood that public life lies at the mercy of private life, nor do they seem to have apprehended the degree to which the [traditional] virtues and [traditional] ethos continue to be indispensable for the maintenance of both the market economy and civil society.

   Id.
   
   Another researcher has found that "the single most important factor in determining if a male will end up incarcerated later in life is . . . whether or not he has a father in the home." MICHAEL GURIAN, THE GOOD SON: SHAPING THE MORAL DEVELOPMENT OF OUR BOYS AND YOUNG MEN 182 (1999) (referring to research studies conducted by the University of Pennsylvania and Princeton University). The mother-child relationship is equally important. "As mothers spend less time with infants and toddlers . . . the boys' developing brains, and thus their behavioral systems, are affected." Id. at 42-43. Children without this crucial early bonding are "more likely to start out on a path of later narcissism and out-of-control behavior as [they] compensate[] for [the] early deprivation." Id. at 43.
   
   Gurian notes that today there is a cultural strain on the early bond between both mothers and fathers:
   Most boys lose their mothers not because of death but because the importance of the mother-son bond has been gradually diminishing in our culture, and thus in the home. Pressures on contemporary mothers are such that many mothers can't mother their sons as they wish and need to. Similar pressures have for years frayed the father-son bond . . . .
   
   Id. at 42. Gurian also notes:
   

   [t]he reason the question of working mothers and child care is so developmentally crucial now is that mother-child attachment itself has changed a great deal by force of culture. Our economic system forces many mothers to work far away from their babies, and the 'aunties' - the child-care workers provided by our culture - are generally so slightly paid that they don't stay around long enough to form bonds. This situation is potentially dangerous to the developing child.

   
   Id. at 74. See also W. Bradford Wilcox, et al., "Why Marriage Matters: 26 Conclusions from the Social Sciences," (AIE 2005).


10. See generally Judith S. Wallerstein, et al., THE UNEXPECTED LEGACY OF DIVORCE: THE 25-YEAR LANDMARK STUDY (2000) (initial chapters trace the arguments and reasoning supporting "no fault" divorce).


11. See W. Bradford Wilcox, et al., note 9, above.


12. See, e.g., Linda Waite and Maggie Gallagher, THE CASE FOR MARRIAGE (2000) (book-length survey of social science studies demonstrating, among other things, that document that adults who are married do better than singles in wealth, health, and personal satisfaction and that children living with a divorced or unwed single parent are more likely to fall into poverty, sickness, and crime than other children); Judith S. Wallerstein, et al., note 10, above (longitudinal study of divorcees and their children demonstrates unexpected and serious continuing harms flowing from the "divorce revolution" of the 1970's).


13. See, e.g., http://www.aclu.org/lgbt/parenting/11824res19990406.html (Internet discussion basing claims to same-sex marriage upon the purported equality of homosexual and heterosexual relationships).


14. Compare authority in note 13, above, with John Gee, note 2, above.


15. See e.g., authority cited in notes 1, 2 and 8, above. Those who established the UN System noted the reality that the family provides the necessary foundation for a stable society. Among other things, the Universal Declaration of Human Rights states that the "family is the natural and fundamental group unit of society" (Art. 16-3) and is entitled to "the widest possible protection and assistance." Article 16.3 See also, International Covenant on Economic, Social and Cultural Rights, Art. 10-1.