Author archives: Peter Sprigg

Why Do Courts (and the Media) Ignore Federal Precedent on Marriage?

by Peter Sprigg

January 16, 2014

Advocates for changing the fundamental definition of marriage as the union of a man and a woman in order to include homosexual relationships have been encouraged by two recent decisions by federal district court judges.

On December 20, Judge Robert J. Shelby ruled that Utah’s state constitutional amendment defining marriage as the union of one man and one woman violates the U.S. Constitution. On January 14, Judge Terence C. Kern said the same thing about the Oklahoma marriage amendment.

However, one odd aspect of both rulings is their failure to cite one of the most relevant precedents regarding the constitutionality of state definitions of marriage as a male-female union.

Only two federal appellate courts have ever ruled on the constitutionality of a state law defining marriage as the union of a man and a woman. One was the U.S. Court of Appeals for the Ninth Circuit, which in 2012 ruled (on narrow grounds specific to California) that California’s marriage amendment “Proposition 8” was unconstitutional.

However, in one of two major decisions on marriage in 2013, the U.S. Supreme Court vacated the Ninth Circuit ruling, on grounds that the proponents of Proposition 8 had lacked proper standing to appeal a district court decision. (Liberal state officials had refused to defend their own constitution at all.)

With the Ninth Circuit’s ruling having been effectively wiped off the books, the only remaining federal appeals court precedent involves a challenge to Nebraska’s marriage amendment. In that case, too, a district court judge, Joseph F. Bataillon, ruled in 2005 that the amendment was unconstitutional.

However, a year later, a unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit overturned Judge Bataillon’s decision and upheld the Nebraska amendment. This 2006 decision thus remains the highest federal court ruling with a written opinion on state definitions of marriage as one man and one woman.

Yet oddly, neither Judge Shelby in Utah nor Judge Kern in Oklahoma saw fit to even mention this decision. Neither judge’s district is in the Eighth Circuit (both are in the Tenth), so the Bruning case is not binding upon them — but given the relative dearth of such cases that have reached the federal appellate level, it seems odd that it not be mentioned at all.

Below are some excerpts from the opinion, written by Chief Judge James B. Loken:

Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006)

. . .

The State argues that the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in “steering procreation into marriage.” By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws “encourage procreation to take place within the socially recognized unit that is best situated for raising children.” The State and its supporting amici cite a host of judicial decisions and secondary authorities recognizing and upholding this rationale. The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day homosexual parents understandably decry. But it is also based on a “responsible procreation” theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot. See Hernandez v. Robles [New York, 2006]; Morrison v. Sadler, [Indiana, 2005]. Whatever our personal views regarding this political and sociological debate, we cannot conclude that the State’s justification “lacks a rational relationship to legitimate state interests.” Romer, 517 U.S. at 632.3

The district court rejected the State’s justification as being “at once too broad and too narrow.” But under rational-basis review, “Even if the classification … is to some extent both underinclusive and overinclusive, and hence the line drawn … imperfect, it is nevertheless the rule that … perfection is by no means required.” Vance v. Bradley (1979). Legislatures are permitted to use generalizations so long as “the question is at least debatable.” The package of government benefits and restrictions that accompany the institution of formal marriage serve a variety of other purposes. The legislature — or the people through the initiative process — may rationally choose not to expand in wholesale fashion the groups entitled to those benefits. “We accept such imperfection because it is in turn rationally related to the secondary objective of legislative convenience.” [Vance].

. . .

Appellees argue that § 29 [the marriage amendment] does not rationally advance this purported state interest because “prohibiting protection for gay people’s relationships” does not steer procreation into marriage. This demonstrates, Appellees argue, that § 29’s only purpose is to disadvantage gay people. But the argument disregards the expressed intent of traditional marriage laws — to encourage heterosexual couples to bear and raise children in committed marriage relationships.

. . .

In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. Indeed, in Baker v. Nelson (1972), when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed “for want of a substantial federal question.” (Emphasis added.)

. . .

We hold that § 29 and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.

Quiz: What percentage of Americans live in states where the people have voted to redefine marriage?

by Peter Sprigg

January 3, 2014

Advocates of redefining marriage to include homosexual couples have taken to using a new statistic that is apparently intended to communicate the growing acceptance of such redefinition. Instead of talking straightforwardly about the number of states which now issue civil marriage licenses to same-sex couples (eighteen as of this writing), they will say something likeXX% of Americans now live in states with same-sex marriage.”

This theme — clearly designed to maximize the impression that homosexual civil “marriage” is widespread — took hold after California began issuing such licenses in the wake of the Supreme Court’s decision (or non-decision) last June on that state’s marriage amendment, Proposition 8. (The Court declined to rule on the constitutionality of Prop 8, but it let stand a District Court decision which had declared it unconstitutional. Although there remain questions about the legality of their actions, the same state officials who had refused to defend Prop 8 — thus leading to the non-decision by the Supreme Court — chose to begin issuing marriage licenses to same-sex couples statewide.)

Since California is the largest state in the country, with its 37 million residents representing twelve percent of the entire U.S. population, its inclusion almost automatically means that the “percentage of the population” living in states that have redefined marriage will be higher than the “percentage of the states” that have done so.

One could, however, just as easily come up with other ways to statistically describe how widespread the acceptance of marriage’s redefinition has become — ways which would give quite a different impression.

For example, in some states marriage was redefined (or its legal benefits redistributed) by judicial fiat, bypassing normal democratic processes of law-making altogether. Subtracting those would result in a lower percentage figure. In others, it was pushed through legislatures through heavy-handed lobbying, while the people were denied the opportunity to vote on the issue. Subtracting those would result in an even lower percentage. In either of these situations, the mere existence of same-sex “marriages” should not be interpreted as public acceptance of them.

Suppose we look, instead, only at states in which the voters themselves, acting on a referendum at the ballot box, have decided the definition of civil marriage.

There are thirty states where the people have adopted, by referendum, state constitutional amendments to define marriage as the union of one man and one woman. (Two of those states, California and Utah, are currently issuing marriage licenses to same-sex couples anyway, but only as a result of federal court decisions.) Fully two thirds of the American public — 66.7 percent — live in states where the people have voted for a constitutional one-man-one-woman marriage definition.

On the other hand, in only three states have voters actively endorsed laws to redefine marriage at the ballot box — Maine, Maryland, and Washington (all in November 2012). Combined, these three states represent only 4.5 percent of the American population.

Obviously, this is a selective use of statistics (I would not deny that more than 4.5% of Americans now think same-sex couples should be allowed to get marriage licenses). But the “mainstream” media is often guilty of the selective use of statistics, too — for example, in ignoring polls that show most Americans oppose changing the definition of marriage.

Yet I doubt that the media will ever report that almost fifteen times as many people live in states where voters have endorsed a one-man-one-woman marriage definition as live in states where voters have endorsed changing that definition.

Some times I hate it when what I predict comes true.”

by Peter Sprigg

January 2, 2014

The quote in the headline above (“Some times I hate it when what I predict comes true”) is the text of a tweet sent out by former Senator Rick Santorum on December 15. With it, he linked to an article from the Salt Lake Tribune describing the decision by a federal judge to strike down Utah’s criminal penalties for polygamy as unconstitutional.

Santorum was referring to comments he made in the spring of 2003, when the U. S. Supreme Court had before it the case of Lawrence v. Texas, a challenge to laws against sodomy. Just two months before the Supreme Court would overrule the contrary precedent of Bowers v. Hardwick (1986) and declare homosexual sodomy to be a constitutional right in its ruling in the case, Santorum warned,

… [I]f the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything.”

Santorum faced a firestorm of criticism for these remarks—but they were mirrored by Supreme Court Justice Antonin Scalia himself, who wrote in his dissenting opinion in Lawrence,

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers‘ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.

Conservative predictions that declaring a constitutional right to homosexual sex would lead to claims that there is a constitutional right to homosexual “marriage” have clearly come true. Now, we are seeing validation of the slippery slope arguments that redefining marriage for the sake of including homosexual couples would inevitably open the door for further redefinitions of marriage — including the legalization of polygamy. Sadly, as Sen. Santorum suggested, society is beginning to pay the price for failing to heed such warnings, and what seemed shocking a decade ago is facing less and less resistance.

While my musings do not rise to the level of those by a U.S. Senator or a Supreme Court Justice, I have made the same argument — in particular, in my 2004 book Outrage: How Gay Activists and Liberal Judges Are Trashing Democracy to Redefine Marriage (Washington: Regnery Publishing, Inc., 2004)

Here is what I said in that book (pp. 102-107), ten years ago:

In most of the debate over homosexual marriage, there are arguments and counter-arguments, charges and counter-charges, thrusts and parries. However, there is one argument against homosexual marriage to which its supporters simply have no answer. Their response, instead, is either to stomp their feet and cry foul, or simply to descend into incoherence.

That is the classic “slippery slope” argument — the insight that applying the principle behind legalization of homosexual marriage would inevitably lead to legalization of other sexual deviations and relationships, such as polygamy, incest, or pedophilia.

The “crying foul” response was demonstrated by the reaction to comments made U. S. Senator Rick Santorum, a Republican from Pennsylvania. On April 7, 2003, Santorum gave an interview to Associated Press reporter Lara Jakes Jordan. Anticipating the ruling from the U. S. Supreme Court on the constitutionality of sodomy laws two months later, Santorum warned of the consequences if sodomy was legalized:

… [I]f the Supreme Court says that you have the right to consensual sex within you home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything. Does that undermine the fabric of our society? I would argue yes, it does.[1]

Santorum was immediately subjected to a firestorm of criticism from the media and homosexual activists. His remarks were compared to Senator Trent Lott’s praise of Strom Thurmond’s segregationist presidential campaign. The Human Rights Campaign called them “deeply discriminatory and insensitive.”[2] Columnist Ellen Goodman warned of “the Republican theocracy.”[3] One blogger wrote that “the senator is a vacuous boob prone to outrageous gaffs [sic] and crude outbursts of unvarnished bigotry.”[4]

What no one was able to do was explain in what way, if any, he was mistaken.

In fact, most of these critics failed to even understand his point. In saying that Santorum “equated homosexuality with incest, bigamy, and polygamy,”[5] they were, quite simply, wrong. He was not attempting to “equate” these behaviors on a moral level at all. He was, instead, pointing out that the principles under which people were arguing for the legalization of sodomy would lead, if followed to their logical conclusion, to the legalization of these other behaviors.

If the governing principle that compels the legalization of homosexual sodomy is that “the government has no right to interfere with sexual relationships between consenting adults,” then one would have to conclude that “the government has no right to interfere with sexual relationships between consenting adults” that are bigamous, polygamous, incestuous, or adulterous, either. While there may be a distinction in terms of the average person’s visceral reaction to these respective behaviors, there is no distinction to be made on any basis that is logical and not purely arbitrary.

The same can be said of marriage. If the natural sexual complementarity of male and female and the theoretical procreative capacity of an opposite-sex union are to be discarded as principles central to the definition of marriage, then what is left?

According to the arguments of the homosexual marriage advocates, only love and companionship are truly necessary elements of marriage.

But if that is the case, then why should other relationships that provide love, companionship, and a lifelong commitment not also be recognized as “marriages” — including relationships between adults and children, or between blood relatives, or between three or more adults? And if it violates the equal protection of the laws to deny homosexuals their first choice of marital partner, why would it not do the same to deny pedophiles, polygamists, or the incestuous the right to marry the person (or persons) of their choice?

I had the opportunity to pose this question in a face-to-face debate with Andrew Sullivan, the most prominent “conservative” advocate of homosexual marriage. His response was three-fold:

1) “Marriage in our culture has always been between two persons” (to which I laughed, saying, “That’s our argument — ‘we’ve always done it that way.’”);

2) “Legalizing polygamy would cause a great deal of social disruption;” and

3) “Under a system of polygamy, you would have children who wouldn’t know who their real parents are.”

I could only laugh again and say, “Andrew, you’ve just named all of our arguments against same-sex marriage.”[6]

If the slope is slippery enough, the deconstruction of marriage could lead to some unions that are truly absurd — but, amazingly, not without precedent somewhere. For example, Reuters has reported, “A 25-year-old Indian man has married his 80-year-old grandmother because he wanted to take care of her.” (Local officials did say such a marriage, which took place in a Hindu temple, is illegal, “but they have no plans to take action against the couple.”) The same article, meanwhile, said, “Last June, a nine-year-old Indian girl was married to a dog” (because “a priest told her parents the wedding would ward off evil”).[7] Meanwhile in France, “A 35-year-old Frenchwoman became both bride and widow when she married her dead boyfriend.” And this one was legal — in fact, it required the approval of the French president.[8]

In the more speculative realm, we have a “verbatim press release” that was reprinted by the Washington Post:

The legalization of same-sex marriages may prepare the way for even more radical unions in the future, according to Canadian professor Stephen Bertman. Bertman foresees the possibility of marriage between humans and their household pets or even inanimate objects such as a beloved car or computer… . Bertman offers his views on the evolution of matrimony in the March-April 2004 issue of The Futurist magazine.[9]

And let’s not forget that the Pulitzer Prize for Drama in 2004 went to a play about an East German transvestite titled “I Am My Own Wife.”[10]

But the road to polygamy seems the best-paved — and the most difficult for homosexual marriage advocates to respond to. If, as they claim, it is arbitrary and unjust to limit the sex of one’s marital partner, it is hard to explain why it would not be equally arbitrary and unjust to limit the number of marital partners.

It is also hard for them to address for two other reasons. The first is that there is far more precedent cross-culturally for polygamy as an accepted marital structure than there is for homosexual marriage. And the second is that there is a genuine movement for polygamy or “polyamory” in some circles.

The San Francisco Chronicle’s religion writer did a feature on the “polyamory” movement in 2003. It even quoted Jasmine Walston, the president of “Unitarian Universalists for Polyamory Awareness,” as saying, “We’re where the gay rights movement was 30 years ago.” The story also quoted Barb Greve, a program associate with the Association of Unitarian Universalists’ Office of Bisexual, Gay, Lesbian and Transgender Concerns in Boston. Greve, helpfully described as “a transgender person who likes to be called ‘he,’” said, “There are people who want to be in committed relationships—whether it’s heterosexual marriage, same-sex marriage or polyamory — and that should be acknowledged religiously and legally.”[11]

The gay newspaper the Washington Blade has also featured this topic in a full-page article under the headline “Polygamy advocates buoyed by gay court wins.” It quotes Art Spitzer of the American Civil Liberties Union acknowledging, “Yes, I think [Lawrence v. Texas] would give a lawyer a foothold to argue such a case. The general framework of that case, that states can’t make it a crime to engage in private consensual intimate relationships, is a strong argument.”[12]

This argument is already being pressed in the courts. Two convicted bigamists in Utah, Tom Green and Rodney Holm, have appealed to have their convictions overturned — citing the Supreme Court’s decision in the sodomy case as precedent (so Senator Santorum was right). And another attorney has filed suit challenging the refusal of the Salt Lake Country clerk to grant a marriage license for G. Lee Cook to take a second wife.[13]

Make no mistake about it — if homosexual marriage is not stopped now, we will be having the exact same debate about “plural” marriages only one generation from now.



[1] “Sen. Santorum’s Comments on Homosexuality,” Associated Press (April 22, 2003).

[2] Human Rights Campaign, “National and Pennsylvania GLBT Civil Rights Groups Outraged at Santorum’s ‘Deeply Discriminatory’ Remarks” (April 21, 2003).

[3] Ellen Goodman, “The Republican Theocracy,” Boston Globe (May 1, 2003): A19.

[4] Jeffrey St. Clair, “Santorum: That’s Latin for A**hole,” [edited]; Counterpunch (May 1, 2003); online at www.counterpunch.org/stclair05012003.html; accessedMay 23, 2003.

[5] Maureen Dowd, “Chest Banging, Here and There,” The New York Times (April 23, 2003); online at www.nytimes.com, accessedApril 24, 2003.

[6]FordhamUniversity,Bronx,New York (December 3, 2003).

[7] Kamil Zaheer, “Young Man Marries Own Grandmother,” Reuters (March 19, 2004); online at http://news.yahoo.com.

[8] “Woman married dead boyfriend,” Associated Press (February 11, 2004). Online at http://www.smh.come.au.

[9] Richard Leiby with Anne Schroeder, “The Reliable Source: Annals of Puffery,” The Washington Post (March 21, 2004): D3.

[10] Richard Pyle, “Los Angeles Times Wins Five Pulitzers,” Associated Press Online (April 6, 2004); Nexis.

[11] Don Lattin, “Committed to marriage for the masses: Polyamorists say they relate honestly to multiple partners,” San Francisco Chronicle (April 20, 2004): B-1.

[12] Joe Crea, “Polygamy advocates buoyed by gay court wins: Some see sodomy, marriage opinions as helping their cause,” Washington Blade (December 26, 2003): 14.

[13] Alexandria Sage, “Attorney challenges Utah ban on polygamy, cites Texas sodomy case,” Associated Press (January 12, 2004).

 

I will admit to one mistake. Nine and a half years is considerably less than “one generation.”

Croatians Vote to Protect Marriage in Constitution

by Peter Sprigg

December 3, 2013

By an almost two-to-one margin, the people of Croatia affirmed in a referendum on Sunday, December 1 that “marriage is matrimony between a man and a woman.” That definition will now become part of the national constitution.

A pro-family group called “In the Name of the Family” spearheaded the referendum effort, which came in response to efforts by the current leftist government to extend marriage-like benefits to homosexual partners. Pro-family forces needed 450,000 petition signatures to place the issue on the ballot—but obtained 750,000 in only two weeks in a country of about 4.4 million (this would be the equivalent of obtaining 54 million signatures in the United States).

Both Croatian President Ivo Josipovic and Prime Minister Zoran Milanovic opposed the referendum. However, Croatia is almost 90 percent Roman Catholic, and the Church strongly supported the marriage vote. Croatian Cardinal Josip Bozanic had a letter read in the churches in which he declared, “Marriage is the only union enabling procreation. This is the key difference between a marriage … and other unions.”

In March 2012 the people of Slovenia, Croatia’s neighbor to the north, also rejected leftist social engineering by repealing a new “Family Code” that had been adopted the year before by the Slovenian parliament. The “Civil Initiative for the Family and the Rights of the Child” succeeded in rolling back the new code, which would have recognized homosexual unions and facilitated homosexual adoption and parenting.

Croatia was a part of Yugoslavia before the fall of the communist regime there in the early 1990’s, but it is now a member of the North Atlantic Treaty Organization (NATO) and the most recent country to join the European Union (EU).

A week before the Croatian vote, commentator J.C. von Krembach described the situation:

In both Slovenia and Croatia, the debate around so-called “LGBT rights” evidences the growing disconnection between the ruling classes … and the population. In both countries, politics and economy are under the control of a small – mostly ex-communist – nomenklatura seeking to ingratiate itself with the influential pressure-groups that currently act as opinion-makers throughout the greater part of Western and Northern Europe. These elites believe that, in order to be worthy members of the EU, their countries need to recognize same-sex “marriages”, [even] against the declared will of the people.

The people of Croatia are to be praised for standing up for the natural meaning of marriage and the traditional values of their country.

Memo to Lackland Air Force Base: No “Air Force Policy” Requires Support for Homosexual “Marriage”

by Peter Sprigg

August 15, 2013

Yet another Bible-believing member of the Air Force has come forward with a report of negative treatment—in this case, merely because he defended another Service member who had expressed opposition to homosexual “marriage.”

Air Force Senior Master Sergeant Phillip Monk told Todd Starnes of Fox News Radio that his openly lesbian commander at Lackland Air Force Base inSan Antonio,Texas had essentially forced him into taking leave rather than completing his assignment. (A Lackland spokesman denied that Monk was punished, insisting to Starnes that he was simply at the end of his assignment.)

Monk was caught in the middle of a situation which involved an instructor who was subjected to an investigation for having told trainees that he opposed homosexual “marriage.” Investigators sought to determine whether the unnamed instructor had slandered homosexuals and created a “hostile work environment.”

Monk’s job was to advise the commander on disciplinary action. According to Monk, however, the commander said from the outset that “we need to lop off the head of this guy.” Monk concluded that the instructor’s remarks were innocuous, and suggested instead that the incident could teach everyone—on both sides of the debate over homosexuality—about “tolerance” and “diversity.”

In the end, the instructor was disciplined with a “letter of counseling” in his official file. The commander, however, demanded to know from Monk “if you can see discrimination if somebody says that they don’t agree with homosexual marriage.” Monk refused to answer because, “As a matter of conscience I could not answer the question the way the commander wanted me to.” Instead, he “said that perhaps it would be best if he went on leave,” and the commander agreed.

Monk said to Starnes, “I’m told that members of the Air Force don’t have freedom of speech. They don’t have the right to say anything that goes against Air Force policy.” However, if the homosexual Air Force officer involved in this case thinks that “Air Force policy” requires rejecting the policy choice of three quarters of the States to define marriage as the union of one man and one woman, she should think again.

In fact, she may need to be reminded of what the repeal of the 1993 law on homosexuality in the armed forces actually did and did not require. According to the 2010 report of the Pentagon’s Comprehensive Review Working Group (CRWG) on repeal, repeal was intended to move the military from a negative position on homosexuality to an officially neutral one—but not to one in which sexual orientation would become a protected category.

In fact, the CRWG said explicitly that “we do not [emphasis in the original] recommend that the Department of Defense place sexual orientation alongside race, color, religion, sex, and national origin” with respect to diversity programs, tracking, or Equal Opportunity complaints.

On the other hand, the CRWG noted the fears of some Service members that repeal “might limit their individual freedom of expression and free exercise of religion, or require them to change their personal beliefs about the morality of homosexuality.” The Pentagon sought to assuage those fears by preserving “existing policies regarding individual expression and free exercise of religion,” noting explicitly, “Service members will not be required to change their personal views and religious beliefs.” (Note: the passages on “Moral and Religious Concerns” and on “Equal Opportunity” excerpted above can be found on pages 134-138 of the report.)

The 2010 Congressional vote repealing the 1993 was premised upon these assurances—even though FRCand other pro-family groups warned at the time that they could not be relied upon. We predicted that pro-homosexual activists would demand that only pro-homosexual viewpoints be allowed in the military, and those predictions are now coming true.

If Congress and the Obama administration are unwilling to return to the higher standard of sexual conduct that prevailed until repeal took effect in 2011, they should at least insist that military commanders live up to the promises that were made during the repeal debate of 2010—that “Service members shall be evaluated only on individual merit, fitness, and capability,” and not on their religious convictions.

Download the Family Research Council report, “A Clear and Present Danger: The Threat to Religious Liberty in the Military.”

The Pentagon’s Gift: DoD Now Has Money for Homosexual Honeymoons

by Peter Sprigg

August 15, 2013

A report by the Associated Press a few days ago quoted an unnamed Defense Department source as saying that “we are looking at providing extra leave for same-sex couples who want to get married to travel to a state where same-sex marriages are legal.”

This report has now been confirmed with the release of two Pentagon memos (including one from Defense Secretary Chuck Hagel) issued yesterday. The second memo, from Jessica L. Wright, Acting Under Secretary of Defense for Personnel and Readiness, clarifies some of the details of the newly revised “Leave and Liberty Policy and Procedures.”

The AP report said same-sex couples would be offered “up to 10 days of leave” for a wedding. The actual memo says that Service members assigned within in the Continental United States may be granted up to 7 days of leave. Only those assigned outside the Continental U.S. are eligible for up to 10 days. This special leave is “non-chargeable,” meaning that it will not be charged to the normal leave granted to all Service members.

However, it is also only available to those “assigned to duty stations located more than 100 miles from a U.S. state (or the District of Columbia) that allows same-sex couples to marry.” So, no seven days’ leave just to cross the Potomac from the Pentagon to DC for a wedding.

Two things should be noted. This policy goes well beyond anything that is required by the U.S. Supreme Court’s decision in June striking down the provision of the 1996 Defense of Marriage Act (DOMA) which defined marriage under federal law only as the union of a man and a woman. A plain reading of the decision in U.S. v. Windsor suggests that the federal government is now only required to recognize same-sex couples as “married” when they reside in a state which also recognizes them as legally “married.” The requirement does not extend to couples whose marriage is not recognized by their state of residence, and Windsor certainly does not require that military personnel be granted extra leave for their destination weddings.

Furthermore, it could well be argued that the new policy actively discriminates against opposite-sex couples—who receive no special leave for their weddings.

Answers to Common Questions/Arguments Regarding the Redefinition of Marriage

by Peter Sprigg

June 25, 2013

The country is awaiting rulings from the Supreme Court in two cases involving laws which define marriage as the union of one man and one woman—the federal Defense of Marriage Act (DOMA), which is binding on the federal government but not the states, and California’s marriage amendment, adopted by voters in 2008 as “Proposition 8.”

Family Research Council has argued that it makes sense to define marriage as the union of a man and a woman, because society needs children and children need a mom and a dad. Those are important public purposes that are not served by homosexual unions.

Here are some brief responses to a few of the common questions or arguments made in favor of redefining “marriage” to include homosexual unions.

  • Q—Shouldn’t everyone have the “right to marry?”

A—Every individual already has the right to marry; but not every couple or group meets the definition of what a “marriage” is.

  • Q—How can you deny homosexuals “marriage equality?”

A—The law does not require us to treat things that are fundamentally different “equally.” It only requires us to treat things that are fundamentally the same (“similarly situated”) equally. Opposite-sex unions are similar to same-sex unions in some ways, but are very different because they cannot fulfill the main public purpose of marriage—promoting responsible procreation and the best setting for childrearing.

  • Q—Why are you trying to impose a religious definition of marriage upon the civil law?

A—Marriage is not just a religious institution or just a civil institution. At its heart, marriage is a natural institution, rooted in the order of nature itself.

  • Q—If the law makes clear that clergy and churches do not have to perform same-sex marriages, doesn’t that protect religious liberty enough?

A—The “free exercise of religion” is not confined to ordained clergy, or within the four walls of a church. If marriage is redefined, religious schools, charities, counselors, businesses, and individual people of faith will all face the risk of being forced to violate their conscience.

  • Q—Isn’t the homosexual redefinition of “marriage” inevitable?

A—What is inevitable is that male-female unions will continue to be uniquely important to the future of society. The only question is whether the government will acknowledge that fact, or attempt to deny it. If the redefinition of marriage were inevitable, its advocates could trust the democratic process to bring that about. Instead, they have asked the Supreme Court to impose such a redefinition before the pendulum begins to swing back against them.

  • Q—Aren’t supporters of one-man-one-woman marriage on “the wrong side of history?”

A—It is more important to be on the right side of truth. The truth is that it takes a man and a woman to make a child; that men and women are not interchangeable in marriage, but complementary; and that children do best when raised by their own mother and father.

For additional information on marriage, see:

Keep the Definition of Marriage as the Union of One Man and One Woman

The Top Ten Harms of Same-Sex “Marriage” (booklet)

Family Research Council Amicus Brief, Hollingsworth v. Perry (Proposition 8)

Family Research Council Amicus Brief, U.S. v. Windsor (DOMA)

Less Than a Third of Americans Want Federal Government to Redefine Marriage

by Peter Sprigg

June 20, 2013

With the Supreme Court due to rule on two cases seeking the redefinition of marriage next week, the media has been reporting widely on polls that claim a majority of Americans now support such a redefinition to include homosexual couples. The implication left by some of these stories is that a majority would therefore be happy to have the Supreme Court rule that the U.S. Constitution requires changing the definition of marriage and forbids any state from defining it as the union of a man and a woman.

One national poll released two weeks ago proves, through an analysis of its findings, that this is not true. Here are the two questions on marriage asked in a poll taken by Selzer & Company for Bloomberg News between May 31 and June 3:

QUOTE

The Supreme Court may also decide on the constitutionality of a prohibition on gay marriage inCalifornia. Do you support or oppose allowing same-sex couples to get married?

Support 52%
Oppose 41%
Not Sure 7%

Do you think there should be a national law allowing same-sex marriage, or should it be state-by-state? (Asked of those who support allowing same-sex couples to get married; n=506.)

National law 61%
Determined state-by-state 37%
Not Sure 2%

END QUOTE

The question about “a national law allowing same-sex marriage” is an awkward and oddly-worded one. The redefinition of marriage in all fifty states is hardly “inevitable,” as its advocates like to claim. But if it ever does become a reality, it will be because a) the Supreme Court orders it; b) the states individually adopt it; or c) the Constitution is amended to require it. But none of these involves Congress passing “a national law” (that is, a statute) to require it, since the statutory regulation of marriage has always been the responsibility of the states. (The federal Defense of Marriage Act only regulates the definition of marriage under federal law—it has no control over state marriage laws.)

Nevertheless, if we treat a possible Supreme Court ruling that the U.S. Constitution requires recognition of same-sex “marriages” as “a national law allowing same-sex marriage,” then the percent favoring that outcome is only 61% of the 52% who support redefining marriage at all. That works out to only 32% of the total sample—in contrast to the 60% who either oppose redefining marriage at all (41%) or support doing it state by state (52% X 37% = 19%).

So if the Supreme Court does force a redefinition of marriage on every state next week, they will be doing so not as a reflection of public opinion, but in defiance of it. 

Supreme Court arguments suggest the end is not near in marriage debate

by Peter Sprigg

April 16, 2013

The mainstream media would have you believe that the decision to redefine marriage for the benefit of homosexual couples has already been made.

Time magazine ran a cover story under the title, “How Gay Marriage Won”—featuring cover photos of a male couple kissing or a female couple kissing—your choice. Pollsters claim that a majority of Americans now support legalizing same-sex “marriage,” and that among young people, that majority is overwhelming. Democratic senators (and a couple of Republicans) who previously opposed redefining marriage have begun falling like dominoes. Same-sex “marriage” is “inevitable,” we are told—it is only a matter of time.

Do not believe it.

In a country where 41 out of 50 states still define marriage as the union of a man and a woman, and voters in a majority, 30 have placed that definition in their state constitutions; it can only be wishful thinking for the advocates of marriage redefinition to claim that it is imminent or inevitable. I suspect that some in the mainstream media are hoping that their prophecy will be a self-fulfilling one.

It’s particularly ironic that the theme of the “inevitability” of same-sex “marriage” seemed to gain ground in the mainstream media the week of the Supreme Court’s oral arguments in the case challenging Proposition 8, the California state constitutional amendment defining marriage as the union of a man and a woman. Unlike the case challenging the Defense of Marriage Act, which presents somewhat narrower issues, the plaintiffs in the Prop 8 case, and their lead attorney Ted Olson, assert that the U.S. Constitution guarantees the right of same-sex couples to “marry.” If accepted, this argument would mean that marriage would be redefined to include same-sex couples not just in California, but in all fifty states. Such an outcome would be comparable to Roe v. Wade—the 1973 decision that forced legalized abortion on all fifty states.

However, the tone of the argument in the case (known as Hollingsworth v. Perry) actually did not seem to point in the direction of such a sweeping decision. The justices’ gave very little indication that they are prepared to redefine marriage for all fifty states.

Following are some quotes from the justices. We in the pro-family movement have sometimes made a slippery slope argument—if we redefine marriage to eliminate gender restrictions on one’s choice of marriage partner, it would be hard to maintain other restrictions—ones which prevent anyone from marrying a child, a close blood relative, or a person who is already married.

When conservatives raise this logical question, we are routinely vilified for “comparing” homosexuality to polygamy, incest, or pedophilia. Yet one of the justices raised the exact same point, putting it this way (this is slightly edited for clarity):

If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people … that could get married, [with respect to] the incest laws, the mother and child [getting married], assuming that they are [both] the age [to marry]? I can accept that the State has probably an overbearing interest [in] protecting a child until they’re of age to marry, but what’s left?”

What’s interesting is that the justice who raised this was—Sonia Sotomayor, an Obama appointee.

We have also raised concern about the impact of marriage redefinition on the institution of marriage and on children.

One of the justices warned:

[T]here’s substance to the point that [the] sociological information is new. We have five years of information to weigh against 2,000 years of history or more.”

That same justice later elaborated,

The problem with the case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters; and you can play with that metaphor—‘there’s a wonderful destination,’ [or] ‘it is a cliff.’

When Ted Olson, the attorney for the homosexual couples in the case, claimed that there was an analogy between banning same-sex “marriages” and banning interracial marriages, the same justice cut him off and said,

[T]hat’s not accurate.”

The justice who made all those remarks was—Anthony Kennedy, universally viewed as the swing vote between the conservative and liberal factions on the court.

In fact, in the 9th Circuit ruling on Prop 8 (which found the measure unconstitutional, but on narrow grounds that would apply only to California) it was almost comically obvious that the opinion was written to appeal to Justice Kennedy, based on the supposed precedent of his opinion in a 1996 case called Romer v. Evans.

Yet one justice referred to that 9th Circuit opinion and said,

That’s a very odd rationale.”

The justice who said that was—Anthony Kennedy!

It is dangerous to make assumptions about the outcome of a case based on oral arguments—we learned that in the Obamacare case. But few observers now expect a Roe v. Wade of marriage.

That means this debate is probably not near an end. It is likely to continue for years to come.

Procreation at 55? Don’t Laugh.

by Peter Sprigg

March 29, 2013

On March 26, the U. S. Supreme Court heard oral arguments in a case challenging California’s “Proposition 8”—the state constitutional amendment defining marriage as the union of one man and one woman that was adopted by voters in 2008.

Perhaps the roughest moment for Charles Cooper, the attorney representing the proponents of Proposition 8, was when Justice Elena Kagan challenged the argument that marriage exists to promote procreation by spinning a hypothetical question about a couple where the man and woman are both 55 years old, and thus unlikely to procreate.

The (mostly liberal) audience laughed—either unable or unwilling to understand Cooper’s answer, which was actually quite cogent. He began by noting, “It is very rare that both parties to the couple are infertile,” but Kagan cut him off with another question about the couple (rather than the individuals) involved.

Cooper again went on to explain:

Your Honor, society’s … interest in responsible procreation isn’t just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advance the interests in responsible procreation by making more likely that neither party, including the fertile party to that [marriage, will procreate outside the marital relationship].

Except the last part, in brackets, Cooper did not actually get to say, because he was again cut off.

Perhaps Cooper was wary of appearing sexist to Justice Kagan if he stated the truth more bluntly—55-year-old women are virtually always infertile, but 55-year-old men are not. As frustrating as it may be to some feminists, there are some sex differences which cannot be overcome. (Justice Antonin Scalia tried to save Cooper with a joke about Strom Thurmond, the late U.S. Senator who continued to father children well into his 70’s, but it seemed to go over the audience’s heads.)

Society’s interest in promoting “responsible procreation”—the term most commonly used in defending marriage as the union of a man and a woman—involves not just promoting procreation itself, and promoting it in a responsible context (i.e., where the mother and father who make a child are both committed to the child and to each other through marriage). “Responsible procreation” also implies an effort to discourage irresponsible procreation—a quite plausible example of which might be a 55-year-old man going around impregnating fertile women (presumably younger than himself) who are not his wife.

Advocates for redefining marriage really ought to listen more, and laugh and scoff less—especially when they are in the Supreme Court of the United States. Otherwise they make themselves, not their opponents, look ignorant.

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