Friday, August 29, 2008

The Marriage Amendment in Arizona -- The California marriage cases

I am continuing my discussion of the California Marriage Cases:

In re Marriage Cases, 43 Cal.4th 757, 183 P.3d 384 (Cal.,2008)

The California Court plays lip service to the fundamental nature of the marriage relationship. For example, at page 63, the Court includes the following quote in a footnote;

"It is noteworthy that the California and federal Constitutions are not alone in recognizing that the right to marry is not properly viewed as simply a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the right constitutes a basic civil or human right of all people. Article 16 of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, provides: “Men and women of full age, without any limitation due to race, nationality, or religion, have the right to marry and to found a family. . . . [¶]. . . [¶] The family is the natural and fundamental unit of society and is entitled to protection by society and the State.” Numerous other international human rights treaties similarly recognize the right “to marry and to found a family” as a basic human right (Internat. Covenant on Civil and Political Rights, art. 23; see European Convention for the Protection of Human Rights and Fundamental
Freedoms, art. 12; Amer. Convention on Human Rights, art. 17), and the constitutions of many nations throughout the world explicitly link marriage and family and provide special protections to these institutions. (See Wardle, Federal Constitutional Protection for Marriage: Why and How (2006) 20 BYU J. Pub.L. 439, 453-461 [describing constitutional provisions of other nations].)"

The California Court then substitutes in its version of the meaning of the language to argue that it is actually upholding the institution of marriage rather than attacking it. The California Court's attitude towards marriage is revealed in this statement:

"Although past California cases emphasize that marriage is an institution in which society as a whole has a vital interest, our decisions at the same time recognize that the legal right and opportunity to enter into such an officially recognized relationship also is of overriding importance to the individual and to the affected couple."

In other words, the rights of the individuals "override" those of society as a whole.

The Court's arguments include references to the marriage as the basis for the establishment of the family unit. The Court says: "Finally, of course, the ability to have children and raise them with a loved one who can share the joys and challenges of that endeavor is without doubt a most valuable component of one’s liberty and personal autonomy."

Whose children are they talking about? At least one member of a same-sex domestic partnership, cannot have a biological relationship with the other's children. It is a physical fact that children in such a relationship must come from outside that relationship. No changing of labels will change that fundamental fact.

As stated in The Divine Institution of Marriage: "Strong, stable families, headed by a father and mother, are the anchor of civilized society. When marriage is undermined by gender confusion and by distortions of its God-given meaning, the rising generation of children and youth will find it increasingly difficult to develop their natural identity as a man or a woman. Some will find it more difficult to engage in wholesome courtships, form stable marriages, and raise yet another generation imbued with moral strength and purpose." It is a mockery of the institution of the family and of marriage itself to even assume for the purpose of an argument that redefining marriage would not have a dilatory effect on the entire society.

Again to The Divine Institution of Marriage: "It is true that some same-sex couples will obtain guardianship over children –through prior heterosexual relationships, through adoption in the states where this is permitted, or by artificial insemination. Despite that, the all-important question of public policy must be: what environment is best for the child and for the rising generation? Traditional marriage provides a solid and well-established social identity to children. It increases the likelihood that they will be able to form a clear gender identity, with sexuality closely linked to both love and procreation. By contrast, the legalization of same-sex marriage likely will erode the social identity, gender development, and moral character of children. Is it really wise for society to pursue such a radical experiment without taking into account its long-term consequences for children?"

Even though proponents of same-sex marriages can argue that other societies have tolerated that relationship, the tolerance has never been to the extent of displacing the traditional family and marriage.

More later.

Monday, August 25, 2008

The Arizona Marriage Amendment -- What is the challenge?

I have been discussing the California Court's opinion in

In re Marriage Cases, 43 Cal.4th 757, 183 P.3d 384 (Cal.,2008)

It is the nature of judicial writing that the court would like to make it appear that the decision was inevitable. The judges don't want to appear to be making new law so that they can avoid the criticism that they are "activist" judges with an agenda. It is rare that the Court will be so open, as the California Court here, as to allow the readers to see through the appearances and understand that the judges really are setting forth an agenda contrary, to not just the position of the losing party, but a position that is in opposition to the majority of society. The only legal way to curb judge made law is through legislation.

The California Court is not just in opposition to societal norms, the California Court is actively attacking the entire concept of marriage. As stated in the Divine Institution of Marriage (see link on this blog):

"Marriage is not primarily a contract between individuals to ratify their affections and provide for mutual obligations. Rather, marriage and family are vital instruments for rearing children and teaching them to become responsible adults. While governments did not invent marriage, throughout the ages governments of all types have recognized and affirmed marriage as an essential institution in preserving social stability and perpetuating life itself. Hence, regardless of whether marriages were performed as a religious rite or a civil ceremony, married couples in almost every culture have been granted special benefits aimed primarily at sustaining their relationship and promoting the environment in which children are reared. A husband and a wife do not receive these benefits to elevate them above any other two people who may share a residence or social tie, but rather in order to preserve, protect, and defend the all-important institutions of marriage and family."

It is apparent that the action taken by the California Court is not benign. It is not merely an extension of the law but a radical and direct attack on the sanctity of marriage. Even though the language of the decision seems scholarly and constantly appeals to prior legislation and judicial decisions, it is unquestionably not benign.

Once again to quote The Divine Institution of Marriage:

"In recent years in the United States and other countries, a movement has emerged to promote same-sex marriage as an inherent or constitutional right. This is not a small step, but a radical change: instead of society tolerating or accepting private, consensual sexual behavior between adults, advocates of same-sex marriage seek its official endorsement and recognition."

This statement is not a narrow minded reaction to a liberal position taken by the California Court, it is a statement of fundamental belief. A belief held by millions of people throughout the world. As it states in The Divine Institution of Marriage:

"Legalizing same-sex marriage will affect a wide spectrum of government activities and policies. Once a state government declares that same-sex unions are a civil right, those governments almost certainly will enforce a wide variety of other policies intended to ensure that there is no discrimination against same-sex couples. This may well place “church and state on a collision course.”"

More later.

The Arizona Marriage Amendment -- Additional background from the California Court

In recent posts, I have summarized a portion of the California Court decision in the case of

In re Marriage Cases, 43 Cal.4th 757, 183 P.3d 384 (Cal.,2008)

In summary, so far, the California Court has acknowledged that "current California statutory provisions generally afford same-sex couples the opportunity to enter into a domestic partnership and thereby obtain virtually all of the benefits and responsibilities afforded by California law to married opposite-sex couples. "

The California Court contrasts this with Federal Law and notes:

"In light of the current provisions of federal law, the many federal benefits (and the amount of those benefits) granted to a married person or to a married couple on the basis of their married status are not available to registered domestic partners. Included within this category are significant benefits such as those relating to Social Security, Medicare, federal housing, food stamps, federal military and veterans’ programs, federal employment programs, and filing status for federal income tax purposes. All of these important federal benefits, however, also would be denied to same-sex couples even if California designated the official union of such couples a marriage rather than a domestic partnership, because, as noted, federal law defines marriage for purposes of federal law as “only a legal union between one man and one
woman.” (1 U.S.C. § 7.)"

So, if California, as a state, has already given same-sex couples all of the rights and benefits it can possibly give, and if the Federal Government seems to disagree, in principle, with California, what more can California do? The California Court explains its goal:

"Because the California Legislature already has enacted a comprehensive domestic partnership law which broadly grants to same-sex couples virtually all of the substantive legal rights and benefits enjoyed by opposite-sex married couples, plaintiffs have been relieved of the burden of successfully prosecuting a constitutional challenge to obtain those substantive rights and benefits. Thus, in this proceeding, we are faced only with the narrower question that logically ensues:whether, in light of the enactment of California’s domestic partnership legislation, the current California statutory scheme is constitutional." (emphasis in the original).

In other words, the California Court does not feel that it needs to give domestic partners more rights, they justify their decision on the basis that the legislation has already accomplished that goal. The issue is one of labels. The Court views "marriage" as a label, no more and no less. A label that must be applied to domestic partners because under California law they already have all the rights of marriage.

Now why is this an attack on marriage?

Here is the answer directly from the California Court:

"Whether or not the name “marriage,” in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships. The current statutes — by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership — pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry."

It is interesting that a relationship that was considered by society as a whole to be illegal and immoral is now to be accorded the "dignity, respect and stature" of what the Arizona Court has called "a relationship in which “the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.” Nelson, 604 F.Supp. at 593 (quoting Maynard v. Hill, 125 U.S. 190, 211, 8 S.Ct. 723, 729, 31 L.Ed. 654 (1888))"

More later.

Friday, August 22, 2008

The Arizona Marriage Amendment -- More comments on the California Court's Decision

The California Court does acknowledge that there are a few differences, in California, between a "marriage" and a "domestic partnership." The case can be found at:

In re Marriage Cases, 43 Cal.4th 757, 183 P.3d 384 (Cal.,2008)

The California Court states:

"Although the governing statutes provide that registered domestic partners have the same substantive legal rights and are subject to the same obligations as married spouses, in response to a request for supplemental briefing by this court the parties have identified various differences (nine in number) that exist in the corresponding provisions of the domestic partnership and marriage statutes and in a few other statutory and constitutional provisions."

Some of those "differences" are as trivial as a difference in the registration process to a requirement that domestic partners have a common residence. See Page 42 of the Opinion.

The point here is that although there are some differences, the domestic partnership advocates in California have succeeded in obtaining virtually all of the rights of marriage. Not to be repetitious, but the marriage amendment issue isn't about rights and privileges. Passage of the Marriage Amendment, as it is now written, would not impact, in the slightest, the existing domestic partnership laws in California.The other states that have similar provisions are as follows:

  • Issues marriage licenses to same-sex couples: Massachusetts, California*
  • Recognizes same-sex marriages from other states: Rhode Island
  • Allows civil unions, providing state-level spousal rights to same-sex couples:Connecticut, Vermont, New Jersey, New Hampshire
  • Statewide law provides nearly all state-level spousal rights to unmarried couples (Domestic Partnerships): California, Oregon
  • Statewide law provides some state-level spousal rights to unmarried couples (Domestic Partnerships): Hawaii, Maine, District of Columbia, Washington
This compilation comes from the

National Conference of State Legislatures

More later.

Wednesday, August 20, 2008

The Marriage Amendment in Arizona -- More comments on the California Marriage Case

In re Marriage Cases, 43 Cal.4th 757, 183 P.3d 384 (Cal.,2008)

One very important fact; this controversy is not about "rights" or privileges! It is about labels and perceptions. As the California Court notes at page 42 of its decision:

"...nonetheless (by virtue of the explicit provisions of the Domestic Partner Act) under the current governing California statute, registered domestic partners generally “have the same rights, protections, and benefits, and [are] subject to the same responsibilities, obligations, and duties under law . . . as are granted to and imposed upon spouses.”

In other words, we aren't concerned about some kind of discrimination in "rights, protections, and benefits" we are concerned about image and attitude. Underlying this evident concern about attitude and image is the desire and goal to change the concept of marriage to allow any perversion of the concept of marriage to be included within the definition. However, as the Devine Institution of Marriage states:

"We, the First Presidency and the Council of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints, solemnly proclaim that marriage between a man and a woman is ordained of God and that the family is central to the Creator’s plan for the eternal destiny of His children . . . The family is ordained of God. Marriage between man and woman is essential to His eternal plan. Children are entitled to birth within the bonds of matrimony, and to be reared by a father and a mother who honor marital vows with complete fidelity."

The efforts to undermine the definition of marriage, no matter how motivated, have the effect of attempting to frustrate and attack the "Creator's plan for the eternal destiny of His children." Although the California Court would compartmentalize the secular or civil nature of marriage from the religious nature of the relationship, it cannot be done. There are some things that are fundamental and eternal and cannot be altered merely by changing a label.

As the Divine Institution of Marriage goes on to elaborate:

"Marriage between a man and a woman is central to the plan of salvation. The sacred nature of marriage is closely linked to the power of procreation. Only a man and a woman together have the natural biological capacity to conceive children. This power of procreation – to create life and bring God’s spirit children into the world – is sacred and precious. Misuse of this power undermines the institution of the family and thereby weakens the social fabric."

The passage of the Arizona (and California and Florida) marriage amendments is central to an effort to preserve the core values of our society, our faith and our families.

More later.

The Arizona Marriage Amendment -- Observations on the News

The Arizona Republic reported concerning a survey on possible votes for and against the Arizona Marriage Amendment. The news story was short and unremarkable. The comments posted by those both for and against the Amendment were almost uniformly vitupritive and ignorant. Most of the commentators resorted to name calling and rudeness. It was interesting, that there was no dialog at all, nothing that even approached a discussion of the issues. Those for the Amendment were just as lacking in social graces and those opposing. I don't believe in my life that I have ever seen a controversy resolved by ignorant name calling.

Quoting from The Divine Institution of Marriage (see link on this page):

"The Church does not condone abusive treatment of others and encourages its members to treat all people with respect. However, speaking out against practices with which the Church disagrees on moral grounds – including same-sex marriage – does not constitute abuse or the frequently misused term “hate speech.” We can express genuine love and friendship for the homosexual family member or friend without accepting the practice of homosexuality or any re-definition of marriage."

I hope that those who support the Marriage Amendment will take the time to educate themselves about the issues and then, with love, educate those around them. This is not a good time for name calling and ignorant emotional blasting.

Tuesday, August 19, 2008

This is the link and citation to the California Supreme Court case:

In re Marriage Cases, 43 Cal.4th 757, 183 P.3d 384 (Cal.,2008)

During the debate over the previously proposed Arizona Constitutional Amendment, the opposition claimed that the wording of the amendment would impact “domestic partners” and deny them fundamental services such as insurance and welfare benefits. Since the proposition was defeated we will never know if the wording would have that effect.

The previous Arizona ballot measure read as follows:


Ariz. Sec'y of State, 2006 General Election Ballot Measures, Proposition 107, § 1 (2006), available at http:// www. azsos. gov/ election/ 2006/ general/ ballotmeasures. htm (follow ballot number 107 full text hyperlink) [hereinafter Proposition 107].

In the more recent Arizona and California measures, the objectionable language has been removed. In any event, the California Supreme Court contradicts the arguments that passage of either measure would impact the services available to domestic partners. The California Court states:

Although California statutes always have limited and continue to limit marriage to opposite-sex couples, as noted at the outset of this opinion California recently has enacted comprehensive domestic partnership legislation that affords same-sex couples the opportunity, by entering into a domestic partnership, to obtain virtually all of the legal benefits, privileges, responsibilities, and duties that California law affords to and imposes upon married couples. The recent comprehensive domestic partnership legislation constitutes the culmination of a gradual expansion of rights that have been made available in this state to same-sex couples who choose to register as domestic partners.”

The California Court reviews the vast extent of the “benefits” extended to domestic partners in California:

In 1999, the Legislature enacted the initial legislation creating a statewide domestic partnership registry. (Stats. 1999, ch. 588, § 2 [adding Fam. Code, §§ 297-299.6].) In adopting this legislation, “California became one of the first states to allow cohabitating adults of the same sex to establish a ‘domestic partnership’ in lieu of the right to marry.” (Holguin v. Flores (2004) 122 Cal.App.4th 428, 433.) The 1999 legislation defined “domestic partners” as “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” (§ 297, subd. (a).) In addition to other requirements for registration as domestic partners, the legislation provided that a couple must share a common residence and agree to be jointly responsible for each other’s basic living expenses incurred during the domestic partnership, be at least 3 7 18 years of age and unrelated by blood in a way that would prevent them from being married to each other, not be married or a member of another domestic partnership, and either be persons of the same sex or at least one of the persons must be more than 62 years of age. (§ 297, subd. (b).) The 1999 legislation, however, afforded those couples who register as domestic partners only limited substantive benefits, granting domestic partners specified hospital visitation privileges (Stats. 1999, ch. 588, § 4 [adding Health & Saf. Code, § 1261]), and authorizing the state to provide health benefits to the domestic partners of some state employees (Stats. 1999, ch. 588, § 3 [adding Gov. Code, §§ 22867-22877]). The following year, the Legislature included domestic partners within the category of persons granted access to specially designed housing reserved for senior citizens. (Stats. 2000, ch. 1004, §§ 3, 3.5 [amending Civ. Code, § 51.3].) In 2001, the Legislature expanded the scope of the benefits afforded to couples who register as domestic partners, providing a number of additional significant rights, including the right to sue for wrongful death, to use employee sick leave to care for an ill partner or an ill child of one’s partner, to make medical decisions on behalf of an incapacitated partner, to receive unemployment benefits if forced to relocate because of a partner’s job, and to employ stepparent adoption procedures to adopt a partner’s child. (Stats. 2001, ch. 893, §§ 1-60.) In 2002, the Legislature equalized the treatment of registered domestic partners and married spouses in a few additional areas. (See Stats. 2002, ch. 447, §§ 1-3 [amending Prob. Code, § 6401 to provide automatic inheritance of a portion of a deceased partner’s separate property]; id., ch. 412, § 1 [amending Prob. Code, § 21351 to add domestic partners to the list of relationships exempted from the prohibition against being a beneficiary of a will that the beneficiary helped draft]; id., ch. 901, §§ 1-6 [amending various provisions of the Unemp. Ins. Code to provide 3 8 employees six weeks of paid family leave to care for a sick spouse or domestic partner].) Thereafter, in 2003, the Legislature dramatically expanded the scope of the rights of domestic partners in California by enacting comprehensive domestic partnership legislation: the California Domestic Partner Rights and Responsibilities Act of 2003 (hereafter Domestic Partner Act). (Stats. 2003, ch. 421, introduced as Assem. Bill No. 205 (2003-2004 Reg. Sess.).) The Legislature set forth the purpose of this act in section 1 (an uncodified provision) of the legislation, declaring: “This act is intended to help California move closer to fulfilling the promises of inalienable rights, liberty, and equality contained in Sections 1 and 7 of Article 1 of the California Constitution by providing all caring and committed couples, regardless of their gender or sexual orientation, the opportunity to obtain essential rights, protections, and benefits and to assume corresponding responsibilities, obligations, and duties and to further the state’s interests in promoting stable and lasting family relationships, and protecting Californians from the economic and social consequences of abandonment, separation, the death of loved ones, and other life crises.” (Stats. 2003, ch. 421, § 1, subd. (a).) Finding that [alternative lifesyle] Californians have formed lasting, committed, and caring relationships with persons of the same sex,” the Legislature concluded that “[e]xpanding the rights and creating responsibilities of registered domestic partners would further California’s interests in promoting family relationships and protecting family members during life crises, and would reduce discrimination on the bases of sex and sexual orientation in a manner consistent with the requirements of the California Constitution.” (Stats. 2003, ch. 421, § 1, subd. (b).) The Legislature further specified that the provisions of the Domestic Partner Act “shall be construed liberally in order to secure to eligible couples who register as domestic partners the full range of legal rights, protections 3 9 and benefits, as well as all of the responsibilities, obligations, and duties to each other, to their children, to third parties and to the state, as the laws of California extend to and impose upon spouses.” (Italics added.) (Stats. 2003, ch. 421, § 15.) To effectuate this legislative purpose, the 2003 Domestic Partner Act amended the existing statutory provisions relating to domestic partnership by adding several entirely new provisions to the Family Code, most significantly section 297.5, which the legislation provided would become operative on January 1, 2005. (Stats. 2003, ch. 421, § 14.) Section 297.5, subdivision (a), provides in broad and sweeping terms: “Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.” (Italics added.)

More later...

Marriage in Arizona,-- More on the California marriage decision

This is the link and citation to the California Supreme Court case:

In re Marriage Cases, 43 Cal.4th 757, 183 P.3d 384 (Cal.,2008)

The Court’s decision was based on an initiative statute submitted to the voters of California. The Court observed concerning the wording of the statute:

“There is no similar agreement between the parties, however, as to the meaning and scope of a second provision of the Family Code — section 308.5 — that also contains language limiting marriage to a union between a man and a woman. Section 308.5, an initiative statute submitted to the voters of California as Proposition 22 at the March 7, 2000, primary election and approved by the voters at that election, provides in full: “Only marriage between a man and a woman is valid or recognized in California.” Plaintiffs maintain that section 308.5 should not be interpreted to apply to or to limit marriages entered into in California, but instead to apply only to marriages entered into in another jurisdiction; plaintiffs take the position that although this provision prohibits California from recognizing out-of-state marriages of same-sex couples, it should not be interpreted to speak to or control the question of the validity of marriages performed in California. The Proposition 22 Legal Defense Fund and the Campaign contest plaintiffs’ proposed interpretation of section 308.5, maintaining that the statute properly must be interpreted to apply to and to limit both out-of-state marriages and marriages performed in California.” (emphasis added).

The wording of the California statute is similar to the language of the proposed amendment to the Arizona Constitution. Arizonans will vote on November 4, 2008 on Ballot Proposition 102 which reads:

“Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”

The California Court notes the significance of the fact that the measure was an initiative rather than a bill passed by the legislature:

“As already noted, it is clear that section 300 in itself limits marriages performed in California to opposite-sex couples, but the proper interpretation of section 308.5 nonetheless is quite significant because, unlike section 300, section 308.5 is an initiative statute — a measure that, under the provisions of article II, section 10, subdivision (c) of the California Constitution, cannot be modified by the Legislature without submitting the proposed modification to a vote of the people.Accordingly, if section 308.5 applies to marriages performed in California as well as to out-of-state marriages, any measure passed by the Legislature that purports to authorize marriages of same-sex couples in California would have to be submitted to and approved by the voters before it could become effective.”

The issue discussed by the California Court was whether or not the statute was ambiguous given the position of the Plaintiffs in the case, as to whether it was intended to prohibit same-sex marriages in California or only prevent those of other states from being recognized. The Court goes on to state:

“In view of the asserted ambiguity of the statute, plaintiffs urge this court to consider the measure’s purpose as reflected in the initiative’s “legislative history.” In this regard, plaintiffs maintain that the arguments relating to Proposition 22 set forth in the voter information guide indicate that this initiative measure was prompted by the proponents’ concern that other states and nations might authorize marriages of same-sex couples, and by the proponents’ desire to ensure that California would not recognize such marriages. (See Voter Information Guide, Primary Elec. (Mar. 7, 2000) arguments in favor of and against Prop. 22, pp. 52-53; see also Armijo v. Miles (2005) 127 Cal.App.4th 1405, 1422-1424.) Plaintiffs assert that in light of this objective, and the circumstance that when Proposition 22 was submitted to the electorate the provisions of section 308.5 were not needed to establish a limitation on marriages performed in California because section 300 Section 308 provides in full: “A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state.” already specified that marriage in California is limited to opposite-sex couples, section 308.5 should be interpreted to apply only to out-of-state marriages and not to marriages solemnized in California.”

Although the California Court recognizes the argument, it finds that statute is ambiguous because the “average voter is likely to have understood the proposed statute to apply to marriages performed in California as well as to out-of-state marriages.”

The complete quote is as follows:

"Although we agree with plaintiffs that the principal motivating factor underlying Proposition 22 appears to have been to ensure that California would not recognize marriages of same-sex couples that might be validly entered into in another jurisdiction, we conclude the statutory provision proposed by this initiative measure and adopted by the voters — which, we note again, provides in full that “[o]nly marriage between a man and a woman is valid or recognized in California” — cannot properly be interpreted to apply only to marriages performed outside of California. Unlike section 308, section 308.5 itself contains no language indicating that the statute is directed at and applies only to marriages performed outside of California. Further, because section 308.5 states both that only a marriage between a man and a woman is “recognized” in California and also that only a marriage between a man and a woman is “valid” in California, the average voter is likely to have understood the proposed statute to apply to marriages performed in California as well as to out-of-state marriages.”

Because of this supposed ambiguity, the California Court decides that it needs to resolve the issue because, as they state:

“Imposing such discriminatory treatment against out-of-state marriages of same-sex couples, as contrasted with marriages of same-sex couples performed within the state, would be difficult to square with governing federal constitutional precedents.”

The case is not about the rights of the same-sex couples. The Court acknowledges that:

“Although California statutes always have limited and continue to limit marriage to opposite-sex couples, as noted at the outset of this opinion California recently has enacted comprehensive domestic partnership legislation that affords same-sex couples the opportunity, by entering into a domestic partnership, toobtain virtually all of the legal benefits, privileges, responsibilities, and duties that California law affords to and imposes upon married couples. The recent comprehensive domestic partnership legislation constitutes the culmination of a gradual expansion of rights that have been made available in this state to same-sex couples who choose to register as domestic partners.”

This California case is about labels. It is basically saying that “marriage” is a label and nothing more and that despite the clear intent of the initiative statute and the legislative intent, the Court can redefine the label so as to preserve the dignity of same-sex couples. In other words no one should be made to feel bad about how society views their choices and behavior.

More later.

Sunday, August 17, 2008

The Arizona Marriage Amendment -- Analysis of the California case: In re Marriage Cases,

The California Court’s approach is entirely based on an examination of an individual's due process and equal protection rights. There is no consideration of the rights of a family or even recognition of the existence of a “family” as a legal unit. This case is available in all of its 172 pages on line at

In re Marriage Cases
43 Cal.4th 757, 183 P.3d 384

This link is to the California Supreme Court version of the case, however, West Law has the reported version, but you need a subscription to West Law to view the case. The West Law version lists all of the attorneys and organizations involved in the case. I have not counted them but there are many hundreds, including international organizations and law firms across the country. The large number of attorneys involved is an indication of the amount of money being invested by both sides of this issue. This is not a minor issue, it is one of the major issues facing our religion, our society and our fundamental way of life in the United States and throughout the world.

The California Court states,

“Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification the state must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and (2) that the differential treatment not only is reasonably related to but is necessary to serve that compelling state interest. Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — the interest in retaining the traditional and well-established definition of marriage —cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest.” (emphasis added).

So in other words, you can throw out thousands of years of history and tradition merely because it isn’t compelling or necessary to preserve it. Simply because the rights of the individuals to live as they please is superior to the interests of society in preserving the institution of marriage, as it has been defined. The Court also, incorrectly concludes that “permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples. (emphasis added). While at the same time the Court is doing just that, altering the legal framework of the institution of marriage.

The issue raised by the Court is not whether there is a compelling state interest in preserving the institution of marriage, but rather treating marriage as if it were a brand name, a relationship outside of that traditionally recognized was able to use the name. The Court states, “the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.” So now we have a new constitutional right, that of “equal dignity?”

The Court states, “...the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.” In other words, the individual rights are superior to even the state legislature or the initiative process. Society has no interest greater than that of its individual members? This particular view comes right out of the Book of Mormon from the teachings of a man named Korihor. (Alma 30:17.)

And many more such things did he say unto them, telling them that there could be no atonement made for the sins of men, but every man fared in this life according to the management of the creature; therefore every man prospered according to his genius, and that every man conquered according to his strength; and whatsoever a man did was no crime.

The Court goes on to state,

“Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest.Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.”

Contrast this statement with that of the Court in the Arizona case of Moran v. Moran, 188 Ariz. 139, 933 P.2d 1207 (App. 1997):

“Nevertheless, the state is also vitally concerned with the establishment of marriages because marriage is a relationship in which "the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress." Nelson, 604 F.Supp. at 593 (quoting Maynard v. Hill, 125 U.S. 190, 211, 8 S.Ct. 723, 729, 31 L.Ed. 654 (1888)).”

In contrast, the California Court holds:

“We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians,whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”

More on this later.

Friday, August 15, 2008

The Marriage Amendment: the legal background of marriage in Arizona

The position of the Arizona Courts concerning the importance of marriage, is stated in the case of Moran v. Moran, 188 Ariz. 139, 933 P.2d 1207 (App. 1997). This is case is important for its clear review of the importance of marriage to both the family and society as a whole.

There is a need for a balance between the interests of the individual and those of the society as a whole. It is only recently, in the United States and other democratic and republican systems that the interests of the individual have begun to erode the greater good of the whole society. Carried to its illogical conclusion, you have anarchy, with every man and woman acting as a law unto themselves. The concept of "civil and individual rights" have evolved to the point, that virtually any restraint on the individual is deemed unacceptable. However, liberty without restraint is no liberty at all.

We have traditionally looked to our court system to balance the excesses of both our legislatures and our elected and administrative officials. Whenever this balance shifts to one or the other, there is a erosion of that fundamental liberty that maintains both our society and our government. It is apparent that in some areas of the country, the balance has shifted to the judicial branch to the extent that the courts are abrogating the majority will of the legislatures and the people themselves. For example, Arizona has, for the most part, an appointed judiciary. While counties with smaller populations such as Apache, Gila and Navajo, still elect their Superior Court Judges, the larger population counties like Maricopa County, have a completely appointed judiciary. In California the same type of system has produced case like the one in San Francisco overruling the marriage law and sanctioning alternative marriages.

If you would like to read that case, here is the citation and link to the full opinion. It is 172 pages long:

In re Marriage Cases
43 Cal.4th 757, 183 P.3d 384

In contrast here is the opinion of the Arizona case of Moran v. Moran cited above:

The Court's comments on the case are as follows:

"We start our analysis by considering the state's interest in marriage. Marriage is a basic civil right, and the freedom to marry is recognized as a fundamental right within the protective ambit of the equal protection clause of the Fourteenth Amendment. Nelson v. Minner, 604 F.Supp. 590, 592 (S.D.Iowa 1985), aff'd,786 F.2d 1172 (8th Cir.1986); Boynton v. Kusper, 112 Ill.2d 356, 98 Ill.Dec. 208, 213, 494 N.E.2d 135, 140 (1986) (citing Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967)). Nevertheless, the state is also vitally concerned with the establishment of marriages because marriage is a relationship in which "the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress." Nelson, 604 F.Supp. at 593 (quoting Maynard v. Hill, 125 U.S. 190, 211, 8 S.Ct. 723, 729, 31 L.Ed. 654 (1888)). The licensing and performance of marriage and the rights, duties and obligations derived from marriage are of paramount importance to the state and are subject to its control. Rubino v. City of New York, 125 Misc.2d 936, 480 N.Y.S.2d 971, 972 (Sup.1984).

It is well-established that states have the power to determine how its residents may enter into marriage. United States v. Seay, 718 F.2d 1279 (4th Cir.1983), cert. denied,467 U.S. 1226, 104 S.Ct. 2677, 81 L.Ed.2d 873 (1984). See also In re Guardianship of Mikulanec, 356 N.W.2d 683, 689 (Minn.1984) (marriage is "a social relationship subject to the state's police powers"). Accordingly, "[r]easonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed." Zablocki v. Redhail, 434 U.S. 374, 386, 98 S.Ct. 673, 681, 54 L.Ed.2d 618 (1978). See also Califano v. Jobst, 434 U.S. 47, 53, 98 S.Ct. 95, 99, 54 L.Ed.2d 228 (1977); Nicpon by Urbanski v. Nicpon, 145 Ill.App.3d 464, 99 Ill.Dec. 458, 461, 495 N.E.2d 1193, 1196 (1986). Among the matters the state may control are the forms and procedures necessary to solemnize marriages. Nelson, 604 F.Supp. at 592.

Arizona has codified its procedures necessary to form legal marriages at A.R.S. § 25-111. Only two procedural steps are required-obtaining a marriage license and solemnizing the marriage by a person authorized to do so. Moran challenges only the marriage license requirement."

At least in 1997 the Arizona Court of Appeals seemed to recognize the fundamental importance of marriage as the "foundation of the family and of society."

The Moran case involved the following fact situation:

In March 1992, Moran and Braun entered into a contract entitled "Marriage Contract." The contract provided that it was irrevocable and based on "the Divine Law of Yahweh, as revealed in Holy Scripture." Also contained in the contract is the statement that the agreement "is not subject to any statute, rule, regulation, or policy of man, in any jurisdiction whatsoever, if said statute, rule, regulation, or policy is contrary to the Principles of Divine Law. Nor are any of its provisions voidable or challengeable in any court in any jurisdiction."

In the agreement, Moran and Braun contracted to enter into "the state of Holy Matrimony, recognizing the Divine Law of Yahweh as the sole authority for creating and regulating the role and status of Husband and Wife." The remainder of the contract reads:

The Marriage shall be structured according to the Patriarchal Laws of Holy Scripture, and the Authority, Responsibility, and Headship of the Husband shall not, and cannot, be challenged or otherwise interfered with by any civil authority. Any issue of the Marriage shall not be under any form of disability, conventional, legal, or otherwise, to any civil government; shall owe its existence solely to Yahweh; shall, under the Divine Law of Headship, be subject only to the Husband/Father in temporal matters; and cannot be compelled to contract into any form of civil servitude repugnant to and violative of said Divine Law.

All forms of civil law relevant to Marriage and Family not in conformance with the Principles of the Divine Law of Yahweh are specifically repudiated, and the parties declare them to be non-binding and un-enforceable upon this union.

The contract includes "Vows of Union," which Moran and Braun signed before a notary public; the vows are much like traditional wedding vows. The union was solemnized on April 5, 1992, in a religious ceremony with family and friends in attendance. The contract was recorded in the Maricopa County Recorder's Office on September 24, 1993.

On September 14, 1993, a daughter was born to the couple. Between November 1993, and February 1994, Braun periodically left Moran, taking the child with her, but then returned to Moran. Braun initiated at least five such temporary separations. In January 1995, Braun again left Moran. Moran filed both domestic relations and juvenile actions seeking to obtain custody of his daughter. Braun filed a petition seeking a protective order. On February 9, 1995, Moran filed the declaratory judgment action that is the subject of this appeal. He sought a judgment declaring that (1) the marriage contract was valid and enforceable, any Arizona statute to the contrary notwithstanding, (2) a valid marriage existed between Moran and Braun, (3) Braun had breached the contract and was not allowed to remove the child from Moran's custody without his consent, (4) Braun must return the child to Moran, (5) Moran was the sole and lawful custodian of the child, and (6) Ariz.Rev.Stat. Ann. (A.R.S.) § 25-111et seq. is constitutionally invalid as applied to the facts of the case.

Braun failed to file an answer to the complaint, and Moran applied for an entry of default. Default was entered on March 15, 1995. Moran subsequently moved for a default judgment. He argued that the marriage contract created a legal and lawful marriage and that A.R.S. §§ 25-111 and 25-121 are invalid, as applied to his marriage contract, because the requirement of a marriage license interfered with his free exercise of his constitutionally-protected religious freedoms, impaired the obligations of contract, and violated equal protection of the law. He pointed out that the consequence of invalidity of the marriage contract due to the state requirement would be that he would not be presumed to be his child's father.

Braun filed an answer to the complaint in June 1995. She also moved to set aside the entry of default.

After hearing oral argument on the motion for a default judgment, the trial court found and declared that the purported marriage of Moran and Braun was entered into without the issuance of a marriage license as required by A.R.S. § 25-111 and therefore was not a valid marriage. The court further declared that the contract between the parties was not enforceable as a marriage contract nor could it control the custody of the child of the parties. Because, as a matter of law, the court could not grant the declaratory relief sought by Moran, it ruled that Braun's motion to set aside the entry of default was moot. The court also denied as moot Braun's petition for temporary orders regarding custody and support because the paternity of Moran had not yet been established.

In deciding the religious aspects of the case, the rule in Arizona is that a court may determine whether a state act imposes a substantial burden on an individual's exercise of religion. See Fordham Univ. v. Brown, 856 F.Supp. 684, 697 (D.D.C.1994) (regulations prohibiting federal funding of telecommunication equipment for sectarian programming did not burden free exercise of religion, much less substantially burden it). We conclude that Arizona's marriage license requirement does not substantially burden Moran's free exercise of his religion.

To be continued

Thursday, August 14, 2008

The Arizona Marriage Amendment

Here is a link to a statement on the proposed Arizona Marriage Amendment:

I will have more comments later.