Tuesday, September 30, 2008

Reflections on the controversy -- The Arizona Marriage Amendment Proposition 102

It is interesting to review the comments made by those professing to oppose Proposition 102. The opponents seem to repeat two main assumptions as if they were proven facts rather than propaganda. First, that Proposition 102 is somehow a Mormon conspiracy and second that the first assumption is "proven" by looking at the names of the people who have donated money in support of Proposition 102.

The first assumption is simply not supported by the facts. The mere fact that a religious organization supports Proposition 102 does not mean, or even imply, that there is some kind of conspiracy. This same assumption was undoubtedly tried in each of the other 44 states that have already passed the same kind of law or amendment without support from The Church of Jesus Christ of Latter-day Saints. [To see a summary of which states have passed laws and which have passed amendments, see http://www.heritage.org/research/family/marriage50/ ] Secondly, it is no secret that the LDS Church and many of its members, support the Marriage Amendments in Arizona, California and Florida.

To quote George W. Bush, President of the United States of America in a speech given at the White House in June of 2006:

"Today, 45 of the 50 states have either a state constitutional amendment or statute defining marriage as a union of a man and a woman. These amendments and laws express a broad consensus in our country for protecting the institution of marriage. The people have spoken. Unfortunately, this consensus is being undermined by activist judges and local officials who have struck down state laws protecting marriage and made an aggressive attempt to redefine marriage."

Further quoting the President:

"THE PRESIDENT: Thank you all. Please be seated. Good afternoon, and welcome to the White House. It is a pleasure to be with so many fine community leaders, scholars, family organizations, religious leaders, Republicans, Democrats, independents. Thank you all for coming.
You come from many backgrounds and faith traditions, yet united in this common belief: Marriage is the most fundamental institution of civilization, and it should not be redefined by activist judges. (Applause.) You are here because you strongly support a constitutional amendment that defines marriage as a union of a man and a woman, and I am proud to stand with you. (Applause.)"

See http://www.whitehouse.gov/news/releases/2006/06/20060605-2.html

To single out the LDS Church for the reason that the Church and its members support Proposition 102 is bigotry and blatantly anti-religious. The Marriage Amendment transcends any one group or religion. It is a fundamental issue for our entire society. To again quote President Bush:

"Since 2004, state courts in Washington and California and Maryland and New York have ruled against marriage laws. Last year, a federal judge in Nebraska overturned a state constitutional amendment banning same-sex marriage, an amendment that was approved by 70 percent of the population. And at this moment, nine states face lawsuits challenging the marriage laws they have on the books."

That challenge is continuing and will not stop. But to attempt to turn the issue of the support of Proposition 102 into an anti-Mormon bash is intollerant and inexcusable.

My present venue may not have an extensive distribution, but I can, without reservation say that I support Proposition 102.

Sunday, September 28, 2008

The Arizona Marriage Amendment -- Comments from the Arizona Republic

For a change, the media provided a fairly accurate and unbiased report on Proposition 102. See


At least the news report indicated one of the basic reasons for passing a constitutional amendment. It is nice to see something not entirely negative.

Saturday, September 27, 2008

The Marriage Amendment -- Sifting out the lies

One of the issues raised by those opposing Proposition 102 is the the government should not be in the marriage business. For a blatant example of how this issue has been distorted, I suggest a search in Wikipedia on the words: "marriage license." To quote:

"The concept of a Marriage License was introduced in the 1920s, when 38 states prohibited whites from marrying Blacks,Mulattos, Japanese, Chinese,Indians, Mongolians, Malays,or Filipinos without a state approved license.Thus the institution of marriage was fundamentally changed."

This is a complete fabrication and is obvious to anyone familiar with public records. In the United States, marriage license application records are generally available beginning after the American Civil War in the mid-1800s. Marriage records, themselves are found as early as the 1600s in Colonial town records. See for example:

Szucs, Loretto Dennis, and Sandra Hargreaves Luebking. The Source: A Guidebook to American Genealogy. Provo, UT: Ancestry, 2006. Pages 87 to 103. [Note: This book is available in digitized format through Google Books.]

[As a side note, by the way, don't believe everything you read in Wikipedia.]

Why would someone want you to believe that the concept of a marriage license was "invented" for the purpose of discrimination? It is obvious, given the arguments of those opposing marriage, that they wish us to believe that the very concept of marriage discriminates. As it states in The Divine Institution of Marriage (See link in side bar):

"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."

If they can make you believe that the institution of marriage should not be a subject of concern for the government, they may also get you to believe that the Marriage Amendment is a governmental intrusion into an area previously outside of the government's interest and control. The fact is, governments have been in the marriage business for hundreds of years, due to the fundamental nature of the family unit and pervasiveness of family and marriage laws in our society. Those who advocate same-sex marriage and not just concerned with labels, they are attempting fundamentally alter the way our society considers the institution of marriage.

Again to quote from The Divine Institution of Marriage:

"Finally, throughout history the family has served as an essential bulwark of individual liberty. The walls of a home provide a defense against detrimental social influences and the sometimes overreaching powers of government. In the absence of abuse or neglect, government does not have the right to intervene in the rearing and moral education of children in the home. Strong families are thus vital for political freedom. But when governments presume to redefine the nature of marriage, issuing regulations to ensure public acceptance of non-traditional unions, they have moved a step closer to intervening in the sacred sphere of domestic life. The consequences of crossing this line are many and unpredictable, but likely would include an increase in the power and reach of the state toward whatever ends it seeks to pursue."

Wednesday, September 24, 2008

The Arizona Marriage Amendment -- A little historical perspective

One of the more common criticisms of Proposition 102 seems to be that it isn't needed. In examining this criticism it is helpful to have a little historic perspective. Previously, in 2006, there was another ballot measure known then a Proposition 107. That measure was significantly different than the present Proposition 102 and was even more vigorously opposed. The opponents of the measure initially fought Proposition 107 in the courts, taking a case to the Arizona Supreme Court. That case was:

ARIZONA TOGETHER, an unincorporated association; Kaitlin Meadows; Albert Lannon; Amalia Antonioli; Frank Montoya; Al Brezney; Maxine Piatt; Paul Knobbe; Teresa Hewitt; Glen Cromer; and Rebecca Miller, Plaintiffs-Appellants,
Janice K. BREWER, in her official capacity as Secretary of State for the State of Arizona, Defendant-Appellee, and Protect Marriage Arizona, an unincorporated association, Real Party in Interest.

At that time the opponents tried to prevent the measure from even being placed on the ballot. Chief Justice McGregor summarized the history of the case and the Court holding as follows:

"The question presented is whether Proposition 107, a constitutional amendment proposed by voter initiative, complies with the separate amendment rule of Article 21, Section 1 of the Arizona Constitution. Proposition 107 would amend the constitution by adding a new Article 30 defining “marriage” and prohibiting the state and its political subdivisions from creating or recognizing a legal status for unmarried persons similar to that of marriage.The appellants, opponents of Proposition 107, brought this action pursuant to Arizona Revised Statutes (A.R.S.) section 19-122.C (2002) to enjoin the Secretary of State from placing the measure on the ballot in the 2006 general election. Appellant Arizona Together argues that Proposition 107 does not constitute a single amendment, but rather is a composite of three unrelated provisions. In particular, Arizona Together asserts that, if enacted, Proposition 107 not only would define marriage but also could (1) prohibit same sex marriages, (2) prohibit civil unions and domestic partnerships, and (3) prohibit the state and its political subdivisions from conferring benefits and rights on domestic partners. After a hearing, the superior court concluded that Proposition 107 constitutes a single amendment in light of the test established by this Court in Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549 (1934). On August 31, 2006, we entered an order affirming the judgment of the superior court, with this opinion to follow."

This decision came after the ballot measure had already been defeated at the polls.

The Supreme Court went on to note that "No section of the Arizona Constitution presently purports to define marriage." The Court noted that had it passed Proposition 107 would "operate as the only provision of the constitution addressing this subject." In other words there are no other similar provisions in Arizona. The wording of the present Proposition 102 is similar to the opening phrase of Proposition 107. So, in response to the criticism that there is no need of the new law, we have the statement of the Arizona Supreme Court that no similar provision exists in the Arizona State Constitution.

Judge McGregor went on to write:

"Our focus upon the treatment afforded by the Arizona Constitution leads us to conclude that Arizona Together's reliance on various Arizona statutes concerning marriage and domestic partner rights does not advance our inquiry. Merely showing that the legislature has addressed an issue in various places in Arizona's statutory scheme fails to demonstrate that the specific concerns addressed by each statute would not constitute a “single subject in constitutional amendments.” See id. at 397, 265 P.2d at 452 (emphasis added). Because Arizona has not historically treated the definition of marriage in the state constitution, we find little guidance from this factor."

In other words the Supreme Court did not consider the existence of other statutory provisions to be relevant to the issue. Without a constitutional amendment defining marriage the Arizona Supreme Court would be free to consider whatever other issues it wished in an analysis of the constitutionality of the present statutes. It is clear that Proposition 102 is needed to prevent the Arizona Courts from doing the same thing done by the California Court.

If you would like to read the entire Arizona Supreme Court decision, see:


More later.

Saturday, September 20, 2008

The Arizona Marriage Amendment -- Myths and Fables from the Opposition

In reviewing the arguments against Proposition 102 it is apparent that the opposition frequently resorts to myths and fables with no real substance. Rather than acknowledge that a real issue exists and that there is main stream, substantial support for Proposition 102, the Marriage Amendment, the critics resort to catch phrases and propaganda.

From Wikipedia:

Propaganda is a concerted set of messages aimed at influencing the opinions or behaviors of large numbers of people. As opposed to impartially providing information, propaganda in its most basic sense presents information in order to influence its audience. Propaganda often presents facts selectively (thus lying by omission) to encourage a particular synthesis, or gives loaded messages in order to produce an emotional rather than rational response to the information presented. The desired result is a change of the cognitive narrative of the subject in the target audience to further a political agenda.

Propaganda is the deliberate, systematic attempt to shape perceptions, manipulate cognitions, and direct behavior to achieve a response that furthers the desired intent of the propagandist.

Garth S. Jowett and Victoria O'Donnell, Propaganda and Persuasion
See http://en.wikipedia.org/wiki/Propaganda

Here are some of the oppositions' myths and fables:

Myth #1:
Arizona law already prohibits same-sex marriage and so there is no need for the Constitutional Amendment.

California already had a state law defining marriage but the California Court held the law to be unconstitutional, that is the Court placed the rights of same-sex couples to have their relationship called a "marriage" on the same basis as the freedom of speech, religion and assembly. If you understand the ruling from the California Supreme Court, you can see that the only way to limit the courts' continued expansion of these so-called rights, is at the constitutional level. Hundreds of organizations, many of them international in nature, appeared in the California Court case in favor of finding the California Law unconstitutional and legalizing same-sex marriage. It is entirely naive to believe that these proponents of same-sex marriage would not target the current Arizona law and any other state law not supported by a constitutional provision.

Myth #2:
Proposition 102 is religiously motivated and therefore should not be passed.

Restated this myth says that voters should not consider any religiously motivated laws. The proponents of this position oppose any religious involvement in government. They advocate not just freedom of religion, but freedom from religion. The opponents imply that since marriage has only a religious basis, religious organizations have no right to be heard on this subject (or any other) in our society.

Myth #3:
The passage of Proposition 102 would "discriminate" against members of our society.

To argue that Proposition 102 would discriminate while at the same time argue that Arizona already has a prohibition against same-sex marriage and that Proposition 102 is not needed, is double talk. The real issue is that the proponents of same-sex marriage presently see the possibility of overturning the statutory law in Arizona through the Courts. That option would be limited through the passage of Proposition 102. It was only because the California Court broadly expanded the definition of discrimination that the Court could find their law "discriminatory." The California Court broadened the definition merely because they believed that same-sex couples had a right to feel good about themselves and their relationship while at the same time the Court acknowledged that under California law, same-sex couples already had access to virtually every program and protection offered to married couples. The California case wasn't about rights, it was about labels. Since the current Arizona law does not recognize "same-sex" marriage as a protected class, Proposition 102 cannot, by definition, discriminate.

Myth #4:
Government should not be in the marriage business.

This position is essentially the same as the one claiming that Proposition 102 is religiously motivated. This same line of reasoning can be used to ultimately do away with any government regulation. Government is in the "marriage business." Historically, regulation of marriage relationships and marriage licenses have been part of our society and government for hundreds of years. However, this statement reveals that the opponents of Proposition 102 really would like to overrule the existing laws in Arizona, the very laws they say makes the Constitutional Amendment unnecessary. Arizona is a community property state. Entire structures of our state laws, not to mention the foundations of our society are consistent with the definition contained in Proposition 102. Everything from divorce laws to probate laws derive many of their provisions from the assumed definition of marriage. All of these interrelated laws do not reflect any one particular religion or belief, they do, however, reflect a social/economic unit that has been recognized in our legal system for hundreds, perhaps thousands of years. Marriage has long been a civil as well as a religious relationship. To say that government has no role to play in the establishment and definition of marriage, would have all of us start over with an entirely foreign and untried system of laws, completely different than those presently established. Proponents of same-sex marriage would have us throw away all of these laws, just so they can feel good about their personal choices.

Myth #5:
There are other things more important than marriage and so why don't we just ignore what is happening around us and focus on some other issue?

There are few things more important to our society than marriage and the family. If this issue is so unimportant why have hundreds of national and international organizations poured money into Arizona, Florida and California to defeat these proposals?

Myth #6:
Arizona voters are once again being forced to vote on Proposition 102 and voters defeated this measure two years ago.

First of all, no one in the United States, including Arizona, is forced to vote. Secondly, Proposition 102 is a new proposition and, in this form, has never been before the voters in Arizona. Equating Proposition 102 with the former Proposition is dishonest.

Myth #7:
Proposition 102 has been proposed by a small group of right-wing extremists.

Clearly Proposition 102 is a main stream issue. It is the proponents of same-sex marriage who are the extremists. They are the ones who want to change society to fit their own image and who would impose their value system and their lifestyle choices on the vast majority of Arizona's citizens. This statement is what is known as a "big lie" in propaganda. The opponents of Proposition 102 can't have it both ways, they can't maintain that the Marriage Amendment is religiously motivated and at the same time claim that it is the invention of right-wing extremists. Apparently, the opponents would like to define religious people as right-wing extremists.

Myth #8:
Proposition 102 is a mean-spirited attack on a minority.

Everyone is part of some minority. This statement is a thinly veiled attempt to somehow link same-sex marriage to the Civil Rights movement. How can the passage of a law that the opponents claim is entirely unnecessary, be a "mean spirited" attack on anyone, much less a group that defines itself? Those opposing Proposition 102 have initiated a mean spirited attack on The Church of Jesus Christ of Latter-day Saints, a minority.

Voting for Proposition 102 will somehow affect the Arizona economy.

This is about the limit of irresponsible accusations. The opponents claim that the law is already clear in Arizona and the Marriage Amendment is not needed and, at the same time, really want someone to believe that its passage will affect the economy of our state? 27 states have already passed similar constitutional amendments and only seven jurisdictions, in the entire world, (California, Massachusetts and five foreign nations — Canada, South Africa, the Netherlands, Belgium, and Spain) authorize same-sex couples to marry. If this statement were true, we would expect the economies of all of these seven jurisdictions to be booming. Right?

Myth #10:
The passage of Proposition 102 will result in taking away benefits already established under Arizona law.

As the California Court noted in its decision, there was and is, in California, virtually no legal difference between a domestic partnership and a married couple. Although Arizona has not chosen to follow California in applying a broad definition of domestic partnership, the laws already in force in Arizona have not resulted in a diminishing any individual rights. It is interesting that the opponents would like you to believe that the law is not needed because it duplicates existing law, while also claiming that passage of Proposition 102 will take away benefits. Those proponents of same-sex marriage want to broaden the benefits and rights. The opponents would like those "rights" to continue to expand at the expense of the majority married couples. This is a hollow argument without substance.

Proposition 102 -- The Arizona Marriage Amendment

The Ballot Propositions & Judicial Performance Review Publicity Pamphlet came in the mail. I will have a few comments on the other Ballot Propositions and the Judges in another post. However, looking at Proposition 102, I had some observations on the Arguments "Against." The entire Publicity Pamphlet is on-line at in the Arizona Secretary of State's office site. The particular portion pertaining to Proposition 102 is as follows:


First of all, the "Against" people are not just individuals. There are about eleven different named organizations. Apparently, according to the opposition, it is alright to be a member of an organization and oppose the Amendment but it is not OK to be a member of an organization and support the Amendment. These opposition organizations are not just local "grass roots" types of people. We are talking about major, national, very well funded organizations, some of which are from out-of-state. A list of the opposition organizations follows:

Human Rights Campaign, Washington D.C.
League of Women Voters of Arizona
The Arizona Advocacy Network
Equality Arizona
Arizona National Organization of Women
American Civil Liberties Union of Arizona
Arizona Transsexual Alliance
Phil Gordon for Phoenix
Southern Arizona Stonewall Democrats
United Methodist, Tucson

The first of these, the Human Rights Campaign, is a national organization claiming over 700,000 members. All of these organizations have Web sites and represent to have huge following. Another example from the League of Women Voters of Arizona's Web site:

"The League of Women Voters of the United States was founded in 1920, as the culmination of the 72 year struggle to gain women’s right to vote and to help prepare women to exercise their newly acquired right. Today, the League has over 1,000 local Leagues, over 130,000 members who work to encourage political responsibility through informed and active participation in government and to act on selected governmental issues. It is a national organization for men and women over 18."

This organization bills itself as "non-partisan." Another example, Wingspan, an organization which lists more than 55 commercial support organizations in the Tucson area. It is amazingly interesting that the Tucson Daily Star felt impressed to run an article attacking the members of The Church of Jesus Christ of Latter-day Saints for supporting Proposition 102, while at the same time dozens of Tucson organizations were contributing thousands of dollars to the opposition. Where is the story about the funding of the opposition? It is blatantly hypocritical to attack the LDS Church for supporting Proposition 102 and at the same time, ignore the well funded national organizations opposing the measure.

When the California Supreme Court heard the Marriage Case, there were hundreds of organizations that made appearances in the lawsuit. It is completely and fully understandable why the churches feel compelled to participate in this debate. The opposition is neither local nor locally funded, it is national, if not international and heavily funded. The list of organizations that appeared in the lawsuit is monumental. It includes dozens of international organizations, many from the Far East. Why do you think all of these international organizations are interested enough in the definition of marriage to spend money hiring attorneys to attack the California law? I am not a conspiracy theory person. This is not a conspiracy theory. Here is a very partial listing:

Asian American Bar Association of the Greater Bay Area, Asian Pacific American Bar Association of Los Angeles County, Asian Pacific Bar Association of Silicon Valley, Japanese American Bar Association of Greater Los Angeles, Korean American Bar Association of Southern California, National Asian Pacific American Bar Association, Pan Asian Lawyers of San Diego, Philippine American Bar Association, South Asian Bar Association of Northern California, South Asian Bar Association of San Diego, South Asian Bar Association of Southern California, Southern California Chinese Lawyers Association, Vietnamese American Bar Association of Northern California, Asian Equality, Asian Pacific Islander Legal Outreach, API Equality, API Equality-SF, Asian Communities for Reproductive Justice, Asian Law Alliance, Asian Law Caucus, Asian Pacific American Labor Alliance-Alameda, Asian Pacific Islander Family Pride, Asian Pacific Islander Wellness Center, Asian Women's Shelter, Chinese for Affirmative Action, Chinese Progressive Association, Filipinos for Affirmative Action, Gay Asian Pacific Alliance, Institute for Leadership Development and Study of Pacific Asian North American Religion, Korean Community Center of the East Bay, My Sister's House, Asian Pacific American Legal Center, Asian/ Pacific Bar of California, API Equality-LA, Asian American Institute, Asian American Justice Center, Asian Pacific American Legal Center of Southern California, Asian American Legal Defense and Education Fund, Asian American Psychological Association, Asian American Queer Women Activists, Asian and Pacific Islander American Health Forum, Asian and Pacific Islander Lesbian, Bisexual Women and Transgender Network, Asian and Pacific Islander Parents and Friends of Lesbians and Gays, Asian Pacific AIDS Intervention Team, Asian Pacific American Labor Alliance-Los Angeles, Asian Pacific Americans for Progress-Los Angeles, Asian Pacific Islander Pride Council, Asian Pacific Policy & Planning Council, Asian Pacific Women's Center, Center for the Pacific Asian Family, Asian Youth Promoting Advocacy and Leadership, Conference of Asian Pacific American Law Faculty, Gay Asian Pacific Support Network, Japanese American Citizens League, Khmer Girls in Action, Korean Resource Center, Koreatown Immigrant Workers Alliance, National Asian Pacific American Law Student Association, National Asian Pacific American Women's Forum, National Korean American Service & Education Consortium, Orange County Asian Pacific Islander Community Alliance, Organization of Chinese Americans San Francisco Chapter, Satrang, South Asian American Leaders of Tomorrow, South Asian Network, Southeast Asian Community Alliance, Southeast Asian Community Center and Southeast Asia Resource Action Center as Amici Curiae on behalf of Plaintiffs and Respondents.

Do you understand why all of these organizations oppose the Marriage Amendment? Think about it.

Friday, September 19, 2008

Tribune Story on the Arizona Marriage Amendment

The Mesa Tribune had an on-line article about the debate heating up over Proposition 102, the Arizona Marriage Amendment. To read about it:


Once again the comments ranged primarily to name calling. However, there were a few comments that noted the strategy of the opposition; to turn the real issue into a bash of The Church of Jesus Christ of Latter-day Saints. It is amazing that the comments from the opposition entirely ignored the lead of the story. To quote:

"More than 800 pastors, mostly evangelical Christian clergy, gathered at the Arizona Biltmore Resort in Phoenix Thursday to hear how important they will be in getting their parishioners and the state's voters to make marriage limited to one man and one woman."

From the tone of the opposition, they would have you believe that churches, particularly the Mormons, don't have the right to participate in public debate. Why else would a former LDS member hold a news conference in front of a Mormon Temple? Tell that to the religious refugees who founded our country, my own ancestors that left England for religious freedom. Just because I believe your alternative lifestyle is immoral does not give you the right to deny me the freedom to voice my opinions.

Wednesday, September 17, 2008

Catholic Bishops Back State Marriage Amendment

The Catholic News Agency reports on EWTN -- the Global Catholic Network about the statement released by the Bishop of Phoenix, Thomas J. Olmsted and the Bishop of Tucson, Gerald F. Kicanas. To read the article see:


Despite the disinformation and rancor expressed by the opposition, Proposition 102 is not a "Mormon" issue.

Arizona Amendment hits the news

It appears that the news media is finally getting into the discussion of the Marriage Amendment. On September 17, the Arizona Daily Star ran the following on line article:


It is unfortunate that those opposing Proposition 102 have to resort to bigotry and anti-Mormon tactics in their campaign. It is further, even more unfortunate that a member of the Arizona legislature would become involved in an attack on one particular faith. To repeat the position of the LDS Church as expressed in the Divine Institution of Marriage:

"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.

Monday, September 15, 2008

The Bishops of the Arizona Catholic Conference have issued a statement in support of Prop 102. The statement and a video presentation by the Bishops can be found at:


This is an important message and needs to be sent out as much as possible. Thanks.

Sunday, September 14, 2008

Marriage Amendment Issues

Here are some comments on a recent ad campaign in Florida, exposing the deceitful practices of the anti-amendment forces:


Please take a look.

Sunday, September 7, 2008

Arizona Marriage Amendment -- 160 donors back state marriage measure

The Arizona Republic ran an article on September 5, 2008 concerning donations in support of various initiative measures. The article is neutral about the issues involved in Proposition 102, but interestingly fails to even mention the number of the initiative measure in the article. The discussion of the support for Proposition 102 is only a small part of the article, which discusses the amount of money raised for several other initiative measures. However, the comments are entirely on the Marriage Amendment.

The comments run the gamut from insensitive and ignorant name calling to involved discussions of the issues. It is apparent that few of the commentators are knowledgeable about any of the arguments either for or against the measure. One phrase, used in criticism of the Proposition, is that somehow the Amendment "would deprive people of their constitutional rights." Think about this. How can an amendment to the constitution, either State or Federal, deprive someone of their constitutional rights? The state and federal constitutions and their interpretation by the legislatures and the courts, define what is and what is not "constitutional." There is no way that a constitutional amendment can deprive anyone of a constitutional right especially an amendment like Proposition 102, that defines a legal and social relationship. Despite the ruling the California Court, no one has a constitutional right to a specific definition of marriage until there is some provision in the constitution making that distinction. As acknowledged by the California Court, there are only a few minor areas in which domestic partnerships differ from marriages. The problem is that absent such a measure, those who uphold the traditional values and meaning of the term "marriage" would be denied their right to do so. A right recognized in Arizona for years.

It would help if those writing in favor of same-sex marriage would read the Proposition. It says nothing at all about the rights of anyone. California is a prime example of having laws that recognize the rights of domestic partners, laws that were passed without changing the definition of marriage. Despite the emotional rhetoric of the comments, there is a fundamental issue. As stated in The Divine Institution of Marriage:

"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."

Proposition 102 recognizes this all important institution and would provide for a constitutional level of support for "an essential institution in preserving social stability and perpetuating life itself."

The very fact that those individuals opposing the Proposition frequently refer to it as an attempt to impose a particular religious viewpoint illustrates the point that they view their own behavior or beliefs in terms of traditional values of society, that is, they view same-sex marriage as a religious issue. These attacks against those with different religious views, who would support the traditional definition of marriage, are the reason why those who support the Marriage Amendment are convinced that failure to pass such measures will result in denial of their religious freedom. Which, by the way, is a fundamental constitutional right.

It is sad that so many of the commentators have a negative viewpoint of marriage. However, because people are imperfect and marriages fail, is no excuse for throwing out the whole system and adopting a radical anti-religious and anti-traditional agenda.

Simply because our society now tolerates a previously criminal behavior, does not automatically mean that toleration implies either acceptance of the morality of the behavior or that the behavior is now entitled to constitutional and societal acceptance and endorsement. Again, to The Divine Institution of Marriage:

"Those who favor homosexual marriage contend that “tolerance” demands that they be given the same right to marry as heterosexual couples. But this appeal for “tolerance” advocates a very different meaning and outcome than that word has meant throughout most of American history and a different meaning than is found in the gospel of Jesus Christ. The Savior taught a much higher concept, that of love. “Love thy neighbor,” He admonished. Jesus loved the sinner even while decrying the sin, as evidenced in the case of the woman taken in adultery: treating her kindly, but exhorting her to “sin no more.” Tolerance as a gospel principle means love and forgiveness of one another, not “tolerating” transgression."

"In today’s secular world, the idea of tolerance has come to mean something entirely different. Instead of love, it has come to mean acceptance of wrongful behavior as the price of friendship. Jesus taught that we love and care for one another without condoning transgression. But today’s politically palatable definition insists that unless one accepts the sin he does not tolerate the sinner."

It is important that those wishing to preserve the traditional role of marriage and the family in our society become educated as to the real issues. The detractors criticized those individuals who contributed to support Proposition 102 and claimed that they were "wasting" their money. What about those who spent a huge amount of money supporting the challenge to the constitutionality of the California initiative measure. There are pages and pages of national and international organizations that hired attorneys to participate in the lawsuit on the side of same-sex marriage. I suppose it is OK to spend money to support something you agree with but it is not OK to spend money opposing your own personal viewpoints. It is also significant that there was, apparently, not one single comment about the $9.2 million dollars raised by the pay-day loan industry to try to confuse the voters about pay-day loan reform. This lack of comment on the other issues merely illustrates the importance of the Marriage Amendment.

Monday, September 1, 2008

The Arizona Marriage Amendment -- Why is it necessary?

We are back to the California marriage case:

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

The California Court states: "The question of access to civil marriage by same-sex couples ‘is not a matter of social policy but of constitutional interpretation.’ [Citation.] It is a question for this Court to decide.” (Id. at pp. 230-231 (conc. & dis. opn. of Poritz, C.J.). As noted generally by Professor Jesse Choper, “the Court should review individual rights questions, unabated by its judgment about whether a particular result will be subject to criticism, hostility, or disobedience.” (Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (1980) p. 167.)" See page 110.

The question of the power of the judiciary to make laws is a fundamental issue in American government.

As the California Court notes in a footnote:
"At this time, only six jurisdictions (Massachusetts and five foreign nations — Canada, South Africa, the Netherlands, Belgium, and Spain) authorize same-sex couples to marry. Of these six jurisdictions, three (Massachusetts, Canada, and South Africa) arrived at that position through judicial decision (Goodridge v. Dept. of Pub. Health, supra, 798 N.E.2d 941; Halpern v. Canada
(Ont.Ct.App. 2003) 65 O.R.3d 161; EGALE Canada, Inc. v. Canada (B.C.Ct.App. 2003) 225 D.L.R.4th 472; Hendricks v. Quebec (Que.Super.Ct. 2002) R.J.Q. 2506; Minister of Home Affairs v. Fourie (S.Afr.Const.Ct. 2006) (3) BCLR 355), and three (the Netherlands, Belgium, and Spain) adopted that position legislatively, without compulsion or direction from a judicial decision. (Netherlands: Civ. code, art. 30 [as amended Dec. 21, 2000]; Belgium: Civ. code, art. 143 [as amended Feb. 13, 2003]; Spain: Civ. code, art. 44 [as amended by law 13/2005, July 1, 2005].) In Canada and South Africa, after the judiciary invalidated marriage statutes limiting marriage to opposite-sex couples, the legislative branch enacted laws complying with the judicial decisions. (Canada: Civil Marriage Act, 2005S.C., ch. 33; South Africa: Civil Union Act 2006 (art. No. 17. 2006).) Although to date the Supreme Judicial Court of Massachusetts is the only state high court in this nation to have found a statute limiting marriage to opposite sex couples violative of its state constitution, we note that in each of the other instances in which a state high court has addressed this issue in recent years, each decision rejecting the constitutional challenge was determined by a divided court, frequently by a one-vote margin. (See, e.g., Conaway v. Deane, supra, 932 A.2d 571 [Md.: four-to-three decision]; Hernandez v. Robles, supra, 855 N.E.2d 1 [N.Y.: four-to-two decision]; Andersen v. King County, supra, 138 P.3d 963 [Wn.:
five-to-four decision]; see also Lewis v. Harris, supra, 908 A.2d 196 [N.J.: court unanimously concluded that same-sex couples are constitutionally entitled to the rights and benefits of marriage, and three of the seven justices further concluded that denying such couples the designation of marriage necessarily would violate the state constitution].)" See pages 114 and 115.

The California Court explains:

"As the United States Supreme Court explained in West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624, 638: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

In other words, the California Court is placing the rights of same-sex couples to have their relationship called a "marriage" on the same basis as the freedom of speech, religion and assembly!! If you understand this position, you can see that the only way to limit the courts' continued expansion of these so-called rights, is at the constitutional level. Only if the individual constitutions of the states, and perhaps of the United States itself, are changed to eliminate the possibility of the court extension of this doctrine, will there be any chance of limiting it. The California Court recognizes the serious challenge their position is to traditional religion and states, in what can be considered dicta, as follows:

"Finally, affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs. (Cal. Const., art. I, § 4.)"

In light of my previous comments, it is also interesting that the California Court extends its concern to the "same-sex couples and their children." At the risk of repetition, same-sex couples do not have children in the biological sense and the fact that our legal system allows same-sex couples to have custody of some one else's child cannot change that fact. The California Court disposes of this issue in a footnote:

"Contrary to the contention of the Proposition 22 Legal Defense Fund and the Campaign, the distinction in nomenclature between marriage and domestic partnership cannot be defended on the basis of an asserted difference in the effect on children of being raised by an opposite-sex couple instead of by a same-sex couple. Because the governing California statutes permit same-sex couples to adopt and raise children and additionally draw no distinction between married couples and domestic partners with regard to the legal rights and responsibilities relating to children raised within each of these family relationships, the asserted difference in the effect on children does not provide a justification for the differentiation in nomenclature set forth in the challenged statutes."

The position of The Divine Institution of Marriage is clear: : "It is true that some couples who marry will not have children, either by choice or because of infertility, but the special status of marriage is nonetheless closely linked to the inherent powers and responsibilities of procreation, and to the inherent differences between the genders. Co-habitation under any guise or title is not a sufficient reason for defining new forms of marriage."

Despite the California Court's comments, this is not a neutral issue. Once again quoting from The Divine Institution of Marriage:

"The prospect of same-sex marriage has already spawned legal collisions with the rights of free speech and of action based on religious beliefs. For example, advocates and government officials in certain states already are challenging the long-held right of religious adoption agencies to follow their religious beliefs and only place children in homes with both a mother and a father. As a result, Catholic Charities in Boston has stopped offering adoption services."

Again The Divine Institution of Marriage:

"When a man and a woman marry with the intention of forming a new family, their success in that endeavor depends on their willingness to renounce the single-minded pursuit of self-fulfillment and to sacrifice their time and means to the nurturing and rearing of their children. Marriage is fundamentally an unselfish act: legally protected because only a male and female together can create new life, and because the rearing of children requires a life-long commitment, which marriage is intended to provide. Societal recognition of same-sex marriage cannot be justified simply on the grounds that it provides self-fulfillment to its partners, for it is not the purpose of government to provide legal protection to every possible way in which individuals may pursue fulfillment. By definition, all same-sex unions are infertile, and two individuals of the same gender, whatever their affections, can never form a marriage devoted to raising their own mutual offspring."

" 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?"

There is no question that there is a need for a constitutional amendment in Arizona, and elsewhere.

More later.