What’s the Harm? Changes and Challenges in Family

Law

by Lynn D. Wardle Bruce C. Hafen Professor of Law

J. Reuben Clark Law School, Brigham Young University

Presented at BYU Education Week, August 18, 2009

Administraton Thanks: BYU Education Week, Brother Carlile, Brother Payne

Introduce Teacher (Law Prof 31 yrs; Past Pres ISFL; ALI; AUL; NRLC; 10 books + >100 law review articles/ book chapters; lectures/presentations in >22 nations; > 25 US law schools)

Introduce Class (CA, other states where SSM issues)

Resources: No handouts (BYU Ed Week policy) so take notes!

1) Marriage & Family Law Research Project website

http://www.law2.byu.edu/organizations/marriage_family/index.php

(symposia, presentations, draft papers, slides, links)

2) “What’s the Harm?” Does legalizing same-sex marriage really harm individuals, families or society?” (Univ. Press Am. 2008) Y

3) “Same-Sex Marriage: A Debate (Praeger 2003) N

Lest We Take Ourselves Too Seriously

Slogan on a T-Shirt :

“Marriage is a great institution – but who wants to spend their life in an institution?”

Audience Survey:

• How many believe that SSM should be legalized? Y____ No_____ U/N/A______

• How many believe that marr-equiv SSCU should be legalized? Y____ No_____ U/N/A______

• How many believe that state constitutions should be amended to prohibit SSM?

Y__ N__ U/N/A__

• How many believe that adoptions by SS couples/partners should be legally permitted?

Y__ N__ U/N/A__

Outline of Four LecturesDAY 1 (TUES): The Best of Times, the Worst of Times

• External vs Internal Threats to the Family

• Developments in the US and world re: SSM, SSCU, LGAd

DAY 2 (WED): What’s the Harm? Does legalizing same-sex marriage and gay parenting really harm individuals, families or society?

• How these developments threaten individuals, and families and society

• Exporting and importing same-sex marriage,civil unions, LGAds

DAY 3 (THURS): Marriage, Virtue, and the Foundation of American Constitutional Government

• The Founders, Republican Virtue and the political importance of Marriage & Family

•  Why Virtue and Marriage Still Matter Today

• DAY 4 (FRI): The Future for Families: Effective Influence

• Three main Issues in next 12-15 months

• Working Effectively to Make the World Better for Families

•

A. The Worst of Times 1. Developments in the US, pro-same-sex marriage and civil unions2. Developments in the US, pro-gay adoption & children (CBOW)3. Developments globally, pro-SSM 4. Developments globally pro-gay adoptions & children (CBOW)

B. The Best of Times 1. Developments in the US, protecting marriage 2. Developments in the US, protecting adoption & children 3. Developments globally, protecting marriage (37 nations) 4. Developments globally protecting marital adoptions and families (EU polls)

5. 2009 changes: moving to expensive pews but not crossing the aisle C. Challenges and Opportunities for Individuals, Families and Society - Overview

Lecture 1: The Best of Times, the Worst of Times:Recent Developments in Families and

Family Law“It was the best of times it was the worst of times, it was the

age of wisdom it was the age of foolishness, it was the epoch of belief it was the epoch of incredulity, it was the season of light it was the season of darkness, it was the spring of hope it was the winter of despair, we had everything before us we had nothing before us . . . .”

Charles Dickens,

A Tale of Two Cities (1859).]

•  

Lecture 1: The Best of Times, the Worst of Times

OutlineA. Contrast between External & Internal; Improvement vs. Disintegration B. The Worst of Times re: Redefining Family

1. Developments in the US, pro-same-sex marriage and civil unions2. Developments in the US, pro-gay adoption & children (CBOW)3. Developments globally, pro-SSM 4. Developments globally pro-gay adoptions & children (CBOW)

C. The Best of Times re: Redefining Conjugal Family 1. Developments in the US, protecting marriage 2. Developments in the US, protecting adoption & children 3. Developments globally, protecting marriage (37 nations) 4. Developments globally protecting marital adoptions (EU polls) 5. 2009 changes: moving to expensive pews but not crossing the aisleD. Challenges and Opportunities for Individuals, Families and Society E. Goals: Information, Analysis, Teach/Exemplify Speaking Knowledgeably,

Respectfully & Forthrightly.

A. Contrast between External & Internal; Improvement vs.

Disintegration 20th Century: Dramatic Improvements in External Conditions for

FamiliesHealth & life-expectancyEducation & literacy EmploymentIncome & wealth Living & working conditionsPolitical freedom.

Dramatic deterioration in Internal Conditions for FamiliesCBOW & Abortion CohabitationDivorce Parental Child-rearing SSM and LGAd

Marriages in the USA, 1960-2005Year Number Rate % Adult Pop. m’d

1950 1,667,000 11.1 67.0

1955 1,531,000 9.3 68.4

1960 1,523,000 8.5 67.3

1965 1,800,000 9.3 73.2

1970 2,159,000 10.6 71.7

1975 2,153,000 10.0 69.6

1980 2,390,000 10.6 65.5

1985 2,413,000 10.1 63.0

1990 2,448,000 9.8 61.9

1995 1,954,000 7.6 60.9

2000 2,329,000 8.5 59.5

2005 2,249,000 7.6 59.0

DIVORCE INCIDENCE AND RATES IN THE UNITED STATES, 1920-2005

Year Number of Divorces Divorce Rate per 1000 population

Divorce Rate per 1000 Married Women

% of Adult7 Population Divorced

1920 171,000 1.6 8.0

1930 196,000 1.6 7.5

1940 264,000 2.0 8.8

(1946) (610,000) (4.3) (17.9)

1950 385,000 2.6 10.3 1.9

1960 393,000 2.2 9.2 2.3

1970 708,000 3.5 14.9 3.2

1980 1,189,000 5.2 22.6 6.2

1985 1,190,000 5.0 21.7 7.6

1990 1,182,000 4.7 20.9 8.3

1995 1,169,000 4.4 19.8 9.2

2000 1,182,000 4.1 ~ 16.6 (est.) -

2005 957,2000 4.1 ~ 15.2 (est.) -

Unmarried Cohabitants in USA,

1970-2006Year Unm’d P Hhlds % Hhlds SSP Hhlds % Total

UPH 1970 523,000 0.8%1980 1,589,000 2.0%1990 3,668,000 3.1%2000 5,500,000 4.3%2006 6,017,462 5.4% 770,267 0.7%

111,617,400

• Source: Statistical Abstract of the United States 1994 at 56 & 58; id. 1996 at Table 61 & 62; id. 2000 at tables 57 & 60; id., 2009, Table 62.

Year All Races Number

Rate/1000 live births

White Number Rate/1000 live births

Non-White Number

Rate/1000 live births

1940 89,500 38 40,300 19.5 49,200 168.3

1950 141,600 40 53,500 17.5 88,100 179.6

1960 224,300 53 82,500 22.9 141,800 215.8

1970 398,700 107 175,100 56.6 223,600 349.3

1980 665,747 184 320,063 110.4 345,684 484.5

1990 1,165,400 266 647,400 169 472,700 bl 667 bl

2000 1,347,000 332 866,000 271 427,000 bl 685 bl

2005 1,527,000 369 -- 317 -- 693 bl

2007 1,714,600 397 -- -- -- --

U.S. CHILDREN BORN OUT OF WEDLOCK, 1940-2007

Source: Statistical Abstract of the United States

Utah Children born to Unwed Mothers, 1970-2005

Year Births to Unmarried Mothers Rate per 1,000 live births

1970 1,208 45.0

1975 1,318 41.7

1980 2,604 62.3

1985 3,248 87.0

1990 4,890 135.4

1995 6,216 157.1

2000 8,175 172.7

2005 9,101 176.7

Abortions, 1972-2005

Year Number Abortions

Abortion Rate/1000 Women

Abortion Ratio/ 100 Pregnancies

% Abortion Repeaters

1972 587,000 -- -- --

1975 1,034,000 21.7 24.9 15.2 (74)

1980 1,554,000 29.3 30.0 33%

1985 1,589,000 28.0 29.8 41%

1990 1,609,000 27.4 28.0 45%

1995 1,359,400 22.5 25.9 47%

2000 1,313,000 21.3 24.5 48%

2005 1,206,200 19.4 22.4 47%

Abortions: 1972-2005 (AGI data)*

*The Alan Guttmacher Institute produces the most reliable data on abortions in the United States. However, even the AGI estimates that 3-6% of all abortions are unreported. (CDC data is usually 12-19% lower than AGI because of CDC’s passive methods.)

Many women obtaining abortions have had a previous abortion, but the proportion has stabilized

over time(GITiA08)

% of abortions obtained by women who had a previous abortion

0%

20%

40%

60%

80%

100%

1973 1975 1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003

U.S. Families with Children, 1990-2007

Year 1960 1970 1980 1990 2000 2007#Fams/crn - - - 32.289 M 24.605 M 36.757 M“ - % all fams

- - - 49% 48% 47%

# FwC Married

- - - 24.537 M 25,248 M 26,158 M

“ - % all fams

- - - 47% 46% 44%

Legal Status of Marriage As Union of Man and Woman in

the United States and the World

August 1, 2009

I. Push: Nations (/191) & States (/50) Allowing Same-Sex Marriage/Unions

Same-Sex Marriage Legal: Seven(7)* Nations and Six (6) USA States: The Netherlands, Belgium, Canada, Spain, South Africa,* Norway & Sweden (US: MA, CN, IA, VT, ME & NH [CA-overturned, ME ‘people’s veto’ pending])

 

Same-Sex Unions Equivalent to Marriage Legal in Thirteen Nations and Five US States: Denmark, Norway, Sweden, Iceland, Finland, France, Germany, Luxembourg, Slovenia, South Africa*, Andorra, Switzerland, UK, New Zealand (US: CA, NJ, OR, WA, NV) (CUs replaced by SSM in VT, CN, NH)

 

Same-Sex Unions Registry & Some Benefits in Seven Nations and Three US states: Argentina, Columbia, Croatia, Czech Republic, Hungary,* Israel, Portugal (US: AK, HI, MD, + DC) (*Hungarian Constitutional Court invalidated domestic partnership law as degrading marriage 081215)

Nations (0) With Constitutions Explicitly Requiring Same-Sex Marriage—None

Nations (2) Where the Judiciary Has Required Same-Sex Marriage: Canada & South Africa (US States: MA & CA [+ VT & NJ sscu])

Nations (4) Where the Political Branches Have Adopted Same-Sex Marriage: The Netherlands, Belgium, Spain, Norway & Sweden

Global (US) Progress of Same-Sex Marriage, and Marriage Equivalent Civil

Unions or Partnerships, 1985-2009

YEARSame-Sex Marriage

(US)

Same-Sex Marriage-Equivalent

Unions/Partners (US)

1985 0 0

1990 0 1

1995 0 3

2000 0 6 (1)

2005 3 (1) 13 (3)

2007 5 (1) 15 (6)

2009Au 7 (6) 13 (5)Conclusions:

II. Response: A. U.S. States Barring

Same-Sex Marriage/UnionsSame-Sex Marriage Prohibited by law or appellate court decision in Forty-

two States:

(All but MA, CN, IA, VT, ME, NH, NM, RI & VT)

Same-Sex Marriage Prohibited by State Constitutional Amendment in Thirty

(30) States:

(AK, AL, AR, AZ, CA, CO, FL, GA, HI, ID, KY, KS, LA MI, MS, MO, MN, NB, NV, ND, OH,

OK, OR, SC, SD, TN, TX, UT, VI, & WI)

Same-Sex Civil Unions Equivalent to Marriage Prohibited by State

Constitution Amendment in Nineteen (19) USA States

(AL, AR, FL, GA, ID, KS, KY, LA, MI, NB, ND, OH, OK, SC, SD, TX, UT, VI, WI)

 

Three Types of State Marriage Amendments

Ten SMAs Protect Status of Marriage:

AK, AZ, CA, CO, MS, MO, MN, NV, OR, TN

E.g., “To be valid or recognized in this State, a marriage may exist only between one

man and one woman.” Alaska Const., Art. I, sec. 25 (1998)

 

Nineteen SMAs Protect Substance of Marriage (Forbid Giving Equivalent Substance to DPs

or CUs):

AL, AR, FL, GA, ID, KS, KY, LA, MI, NB, ND, OH, OK, SC, SD, TX, UT, VI, WI

E.g., “Marriage consists only of the legal union between a man and a woman. No other

domestic union, however denominated, may be recognized as a marriage or given the

same or substantially equivalent legal effect.” Utah Const., Art. I, sec. 29 (2004)

One SMA Protects Government Structure (Legisla. Can Ban SSM): HI

“The Legislature shall have the power to reserve marriage to opposite-sex couples.”

Haw. Const., Art. I, sec. 23 (1998)

(Overall voter approval rates for state marriage amendment is nearly 67%)

Additional USA Developments Protecting Marriage

Maine “people’s veto” (100,000 signatures on petitions submitted 7/31/09 (well over 55,000 required)

Iowa polls (after Varnum SCt ruling) 67% people oppose SSM. 2010 con-con Q on ballot

CA after much blustering and threatening and beginning to collect signatures, major gay marriages orgs in CA will not support amend to overturn Prop 8 in 2010.

Nations (/191-UN) Barring Same-Sex Marriage/Unions:

One hundred fifty-one (151) Nations (/191) have Constitutional Provisions Protecting “marriage” an/or “family.”

Eighty-five (85) Nations (/191) Have Substantive Constitutional Provisions Protecting “marriage”

(By Comparison Homosexual Relations Still are Illegal in 67+ Nations (and a capital offense in 9 Nations)

Major Sources: Sodomy Laws, Laws Around the World, last updated June 2, 2006, availabe at http:sodomylaws.org/world/world.htm (last seen 16 July 2008) Elizabeth Kukura, Finding Family: Considering the Recognition of Same-Sex Families in Human Rights Law and the European Court of Human Rights, 13 Hum. Rts. Br. 17, 17-18 (Iss. No. 2, Winter 2006); National Conference of State Legislatures, Same Sex Marriage (Jan 2007), available at http://www.ncsl.org/programs.cyf/samesex.htm (homosexual relations capital crime in Afghanistan, Iran, Mauritania, Nigeria, Pakistan, Saudi Arabia, Sudan, UAE, Yemen)

Thirty-seven (37) of 191 Sovereign Nations (19%) Have Constitutional Provisions

Explicitly or Clearly Adopting Conjugal Marriage Form - Union of Man and Woman

• Armenia (art. 32), Azerbaijan (art. 34), Belarus (art. 32), Brazil (art. 226), Bulgaria (art. 46), Burkina Faso (art. 23), Cambodia (art. 45), Cameroon (art. 16), China (art. 49), Columbia (art. 42), Cuba (art. 43), Ecuador (art. 33), Eritrea (art. 22), Ethiopia (art. 34), Gambia (art. 27), Honduras (art. 112), Japan (art. 24), Latvia (art. 110 – Dec. 2005), Lithuania (art. 31), Malawi (art. 22), Moldova (art. 18), Serbia (art. 62), Somalia (art. 2.7), Suriname (art. 35), Swaziland Constitution (art. 27), Tajikistan (art. 33), Turkmenistan (art. 25), Uganda (art. 31), Ukraine (art. 51), Venezuela (art. 77), Vietnam (art. 64). See also Mongolia (art. 16), Hong Kong Bill of Rights of 1991 (art. 19).

Examples: Article 45 of the Cambodian Constitution: (4) Marriage shall be conducted according to conditions determined by law based on the principle of mutual consent between one husband and one wife. Article 42 of the Constitution of Columbia: the family “is formed . . . by the free decision of a man and woman to contract matrimony . . . .” Article 24 of the Constitution of Japan: “Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis. . . .” Article 110 of the Constitution of Latvia now reads: “The State shall protect and support marriage—a union between a man and a woman,…”

• The Universal Declaration of Human Rights adopted 1946, recognizes that “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

35 International Treaties, Charters, Conventions and other Legal Documents with Provisions Concerning

Marriage and/or Families(Research originally compiled by Scott Borrowman, J.D., 2005)

• Convention on the Prevention and Punishment of the Crime of Genocide

• Convention relating to the Status of Refugees• Supplementary Convention on the Abolition of Slavery, the

Slave Trade, and Institutions and Practices Similar to Slavery• International Convention on the Elimination of all Forms of

Racial Discrimination• Convention on Consent to Marriage, Minimum Age for

Marriage and Registration of Marriages• Recommendation on Consent to Marriage, Minimum Age for

Marriage and Registration on Marriages• International Covenant on Civil and Political Rights• International Covenant on Economic, Social and Cultural

Rights• Convention on the Elimination of All Forms of Discrimination

against Women

• Hague Convention on the Civil Aspects of International Child Abduction

• Convention on the Rights of the Child• European Convention for the Protection of Human Rights and

Fundamental Freedoms• American Convention on Human Rights• American Declaration of the Rights and Duties of Man• Conference on Security and Co-operation in Europe, Final Act (Helsinki

Accord)• African Charter on Human and People’s Rights (Banjul Charter)• African Charter on the Rights and Welfare of the Child• Protocol to the African Charter on Human and Peoples’ Rights on the

Rights of Women in Africa• Geneva Declaration of the Rights of the Child of 1924• United Nations General Assembly Universal Declaration of Human

Rights• Declaration of the Rights of the Child• Proclamation of Tehran• Declaration on Social Progress and Development• Declaration on Social Progress and Development• Declaration on the Rights of Mentally Retarded Persons

• Declaration on the Protection of Women and Children in Emergency and Armed Conflict

• Declaration on the Rights of Disabled Persons• Declaration on the Elimination of All Forms of Intolerance and of

Discrimination Based on Religion or Belief• International Convention on the Protection of the Rights of All

Migrant Workers and Members of Their Families• Cairo Declaration on Human Rights in Islam• Declaration on the Elimination of Violence against Women• Draft Declaration on the Rights of Indigenous Peoples• Beijing Declaration and Platform for Action, Fourth World

Conference on Women• Proposed American Declaration on the Rights of Indigenous

Peoples

III. Adoption by Same-Sex Couples & Partners

Status of Law in USA (August 19, 2009) re:Adoption of Children by Gay and Lesbian Couples & Partners

21 States and DC have statutes or appellate court rulings on whether same-sex couples/partners can adopt; seven other states have other legal developments that strongly suggest what the result will be; so in a total of 28 states + DC the issue is largely resolved. The issue is undecided in 22 states.

Adoption by homosexual individual not barred per se in most states.  Prohibited = 9 (AL, AR, FL, KY, MS, NE, OH, UT, WI)

Probably Prohibited = 1 (OK) Total Prohibited or Probably Prohibited = 10 states Allowed = 13 (CA, CO, CN, DC, IL, IN, ME, MA, NH, NH, NY, PA & VT)

Probably Allowed = 6 (IA, NC, NV, OR, TN, WA)Total Allowed or Probably Allowed = 18 states + DC (19)

Undecided = 22 (AL, AZ, DE, GA, HI, ID, KS, LA, MD, MI, MN, MO, MN, NM, ND, RI, SC, SD, TX, VA, WV, WY)

The policy varies according to which branch of government took the initiative. As of 2006: In 11/16 sts where the courts had acted first allowed lesbigay adoption; In 4/5 states where a legislature acted first to address the issue, the rule adopted has barred lesbigay adoption.

Number of Children in the USA Being Raised by Same-Sex

Partners:Activist estimates: 1M, 4M, 6M, 14 Million children; 1.5-6M couples Grossly

inflated (or premature?)

LDW: 300,000 – 400,000 children being raised by SSCs

Lambda Legal: 250,000 children being raised by SSCs “According to recent data, there are roughly 250,000 children in the United States being raised by same-sex couples. But the rights of LGBT parents vary widely among states. About half of all states permit second-parent adoptions by the unmarried partner of an existing legal parent, while in a handful of states courts have ruled these adoptions not permissible under state laws.”

Source: http://www.lambdalegal.org/our-work/issues/marriage-relationships-family/parenting/ (071001)

Number of Children Adoption by Same-Sex Partners:2000 Census: 57,693 children being raised by unm’d couples (11%=SSCs)Est. 6,500 children adopted by lesbigay couples BUT, “Gayby” boom since 2000! Probably tens of thousands now.Recent estimates = 65,000 adopted cren in L&G homes (probably inflated or

confused).

Gates, et al, UCLA Law School, Adoption and Foster Care by Gay &

Lesbian Ps in the US (Williams Insti & Urban Insti, Mar 2007)

Gates Adoption & Foster Care Estimates (2007)

Adoption: An estimated 65,500 adopted children are living with a lesbian or gay parent.

(No actual count; est. 1.6% adoption rate by G&L households; est. G&L adopt av. 1.3 cren; est. 4.1% of all adopted cren living in G&L households.)

More than 16,000 adopted children are living with lesbian and gay parents in California, the highest number among the states.

Gay and lesbian parents are raising four percent (4%) of all adopted children in the USA.

Same-sex couples raising adopted children are older, more educated, and have more economic resources than other adoptive parents.

An estimated two million GLB people are interested in adopting. More than one in three lesbians have given birth and one in six gay men have

fathered or adopted a child. More than half of gay men and 41 percent of lesbians want to have a child.

Foster Care: An estimated 14,100 foster children are living with lesbian or gay parents. Gay and lesbian parents are raising three percent of foster children in the United

States. A national ban on GLB foster care could cost from $87 to $130 million.

International Status of Adoption by Same-Sex Partners (2007)

Adoption by lesbian and gay partners and/or couples is reportedly allowed by law in at least some circumstances in at least ten Euopean nations (Andora, Belgium, Denmark, Germany, Iceland, the Netherlands, Norway, Spain, Sweden, and the United Kingdom).

It is permitted in at least two other nations outside of Europe with European colonial/historical roots (Israel and South Africa).

It is allowed in some parts of three other largely-European-settled nations (Australia, Canada, and the United States).

The Hague Convention on Inter-Country Adoption leaves allowance/prohibition of trans-national adoption by gay and lesbian couples/partners to each country involved, but is intended to require full and honest disclosure. The Convention leaves recognition of such adoptions to each country. The US implementing legislation does not directly address the issue, the arguably may indirectly require recognition of international adoptions from other countries that have signed the Hague Convention on Inter-Country Adoption.

Public Support for Adoption by Same-Sex Partners in Europe

2003 European Omnibus Survey (ints / 15,000 persons in 30 European nations):

Majority favor SSP Adoption: 4 nationsMajority oppose SSP Adopt: 26 nations

2006 Eurobarometer Poll (for EC):Majority favor SSP Adoption: 2 nations Support for SSP Adopt =<33%: 18 ntns

Conclusions:Be of Good cheer!!We live in the “best of times” despite

the adversity and challenges.We have a great opportunity to “stand

for something.”By becoming informed and by

speaking up appropriately, courageously respectfully, and by refusing to be intimidated or coerced into silence we can make a huge difference.

• THANK YOU!