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Draft 4 (Presentation) 090311

The Jurisprudence of Marriage and the Uniqueness of Marriage

By Lynn D. Wardle1

Bruce C. Hafen Professor of Law, J. Reuben Clark Law School, Brigham Young University

Presented at the Symposium on the Jurisprudence of Marriage and Committed Relationships

Friday, March 13, 2009, at Boston College Law School, Co-Sponsored by BYU Law School

Outline

I. Introduction: Equality or Leveling? II. Global and U.S. Status of Conjugal Marriage, Same-Sex Unions and Non-Marital Cohabitation III. The Philosophy Behind the Unique Legal Preference for Conjugal Marriage IV. Calls for Equal Status, Legal Treatment and Benefits for All Adult Intimate Relationships V. The Limits of Leveling VI. The Limits of Equality VII. Conclusion: Purposeful Preference for Conjugal Marriage * * * * *

I. Introduction: Equality or Leveling?

Historically, conjugal marriage has been uniquely privileged in the law, not only of

Anglo-American legal systems but in the laws of Civil law systems, Asian legal systems, African customary laws, Polynesian legal systems, etc. Today, an idea that has become popular with some academics, including some legal scholars, based primarily on the principle of equality, that all adult intimate relationships are generally equivalent, and that all adult intimate relationships should be treated equally in the law. The movements to legalize same-sex marriage or to create same-sex civil unions with legal status and benefits equivalent to marriage are the leading edge, but only one edge, of the movement to “level” and treat as legal equivalents marriage and other forms of adult intimate relationships.

1 The valuable research assistance of Joseph Shapiro, Elizabeth N. Harnish, Christine Christensen, and Nephi Hardman is gratefully acknowledged.

1 The idea of creating a jurisprudence that treats as equal conjugal marriage and other adult intimate relationships assumes that marriage both kinds of relationships share critical characteristics in common that would make it appropriate to treat them equally in the law. This paper argues that such an endeavor, however interesting it may be in the abstract, would not advance but distort the notion of equality. This paper also argues that it would be dangerously flawed and doomed to failure from the outset because marriage is a unique, and uniquely valuable kind of human relationship that merits unique legal treatment and recognition as an appropriate subject of a unique jurisprudence. A legal system and theory that treats as equivalent all adult intimate relationships including marriage would not only impose legal requirements and behavioral standards on other relationships that are contrary to the wishes, understandings, agreements, and expectations of the parties to those relationships, but would conceal from the eyes of the law, and thus hide and remove from many (especially the most vulnerable) in society, some the most socially valuable and legally significant attributes of marriage.

In Part II, this paper reviews the current status of marriage and other forms of intimate adult relationships in the law. Both American law is reviewed and the global status of marriage, same-sex unions and other non-marital adult relationships of intimacy is reported. Part III examines the philosophy of law and legal policy underlying the nearly-ubiquitous preference for and privileging of conjugal marriage. In Part IV of this paper some of the recent arguments for treating all adult intimate relationships as equivalent in law are reviewed. Part V explains why there are limits to which such leveling can be permitted. The limits of equality to justify treating all relationships as equal to marriage are discussed in Part VI. Finally, Part VII provides a brief conclusion connecting the protection of family and securing basic human rights.

2 II. Global and U.S. Status of Conjugal Marriage, Same-Sex Unions and Non-Marital

Cohabitation

The first important question regarding the jurisprudence of marriage is factual: What are the legal requirements for and of marriage in the United States and globally? For the purposes of this examination of the jurisprudence of marriage and other adult intimate relationships a related factual question is relevant: What is the current status of marriage law, vis-à-vis same-sex unions and other non-marital adult intimate relationships, in the various systems or bodies of law in the

United States and around the world? 2 An accurate understanding of the status of marriage and non-marital relationships in the laws of various legal systems may help us to avoid endorsing a beautiful, abstract legal theory that could be easily mugged by a vicious gang of facts.

A. The Universal or Common Requirements for and of Marriage

Across cultures and throughout history, marriage has varied significantly in many aspects. Marriage seems to be in a constant state of flux as to some (mostly minor) legal incidents, some evolving cultural nuances, and numerous transitory social fashions expectations.3

2 The word jurisprudence has multiple meanings, including, inter alia, “a system or body of law.” Jurisprudence in Oxford English Dictionary Online (herein “OED-O”), available at http://dictionary.oed.com.proxlaw.byu.edu/cgi/entry/50124819? single=1&query_type=word&queryword=jurisprudence&first=1&max_to_show=10 (seen 25 February 2009); Jurisprudence in Black’s Law Dictionary 992 (Rev. 4th ed. 1968) (herein “Blacks”); jurisprudence in Merriam-Webster Online (herein “M-WO”), at http://www.merriam- webster.com/dictionary/jurisprudence (seen 25 February 2009). 3 See, e.g., Stephanie Coontz, Marriage, a History: From Obedience to Intimacy, or How Love Conquered Marriage, (2005); Stephanie Coontz, The Way We Never Were: American Families and the Nostalgia Trap (1992 / 2000) (“values, and behaviors that never coexisted in the same time and place.” Id. at 9); American Families: A Multicultural Reader (Stephanie Coontz, Maya Parson & Gabrielle Raley, eds., 1999); Stephanie Coontz, The Way We Really Are: Coming to Terms with America’s Changing Families (1997). Indeed, there is a growing cottage industry of scholars advocating major changes in marriage on the basis of the evolving nature of marriage which they view as a natural and harmless and positive process. See, e.g., the Coontz writings, supra (this note); Charles P. Kindregan, Jr., Same-Sex Marriage: The Cultural Wars and the Lessons of Legal History, 38 Fam.L. Q. 427 (2004) (arguing that the meaning of marriage has changed and same-sex marriage fits within that historical process); John R. Gillis, A World of Their Own Making: Myth, Ritual, and the Quest for Family Values (Basic Books 1996); Judith

3 However, there also are some constant qualities of marriage, especially some significantly (if not literally) universal legal requirements for parties to marry, and legal duties or privileges imposed on individuals when married. These common or universal traits have long been of interest to legal comparativists (as well as to some anthropologists, some sociologists, some legal and family studies historians, etc.).

Today as a matter of comparative family law the legal institution of marriage consists of at least six substantive requirements for parties to become married, and at least three legal duties or privileges are given to married individuals. Together, these comprise nine common and rather stable characteristics of marriage that are normatively valued and legally recognized as a matter of near-universal, if not universal, marriage law. Legal marriage is a relationship constituted by the (1) voluntary agreement/contract of (2) two (3) competent (4) adults (5) of the opposite sex,

(6) who are not related closely to each other.4

Stacey, In the Name of the Family: Rethinking Family Values in the Postmodern Age 126-35 (1996) (arguing for the legalization of same-sex marriages as a way to promote democratic expansion of family life while noting that children in gay families experience legal discrimination and societal prejudice); Arlene Skolnick, Embattled Paradise: The American Family in an Age of Uncertainty 212 (1991) (“[i]f we care about children, we need to focus less on the form of the families they live in and more on ways of supporting their well-being in all kinds of families.”); Carol Weisbrod, Divorce Stories: Readings, Comments and Questions on Law and Narrative, 1991 B.Y.U. L. Rev. 143, 156-61 (changing expectations in marriage). The arguments for adopting major redefinitions of marriage based on the history of changes in marriage usually fail to recognize the difference between changes in the incidents of marriage and changes in the core definitional elements of the institution of marriage, and disregard the crucial distinction between changes in the mere extent or degree of particular marital practices or dysfunctions that ebb and flow over time, and changes in the core constitutive elements of marriage. These change arguments also ignore the important conceptual difference between changes in how individuals experience marriage over the course of their life-cycles (i.e., from young newly weds to couples with children, to middle-aged empty-nesters, to married grandparents, to dependent aged couples), and legal changes in the core constitutive elements of marriage. They also tend to downplay or ignore the serious consequences of changing a the core constituent elements of the institution of marriage. See generally Lynn D. Wardle, What is Marriage? 6 Whitt. J. Child & Fam. Advoc. 53, 77 (2006). 4 Lynn D. Wardle, International Marriage and Divorce Regulation and Recognition: A Survey, 29 FAMILY LAW Q. 497, 500-501 (1995) (noting six nearly ubiquitous requirements for marriage around the world and a variety of legal system); see generally Special Symposium on

4 Within marriage, (7) sexual relations, procreation and childrearing are sanctioned (legally permitted and socially expected), (8) there is an expectation and often some enforceable duty of mutual and shared exchange of labor, material resources, or support, and (9) there is a socially-

(and often legally) encouraged expectation, at least aspirational of lifelong permanence.5 While societies can be found in which marriage is or has been understood differently as to each of these elements, and today there are movements challenging some or all of them in various places in the world, all of these elements not only have existed historically for centuries (at least since the

Enlightenment, but in most cases for millennia prior to that), but these nine elements still are the prevailing common definitional requirements and socio-legal expectations of legal marriage.

Behind each of these general nearly-universal marriage requirements is an assumption about

marriage that reveals something of the common jurisprudence of marriage, and also

something about the norms, values and purposes of legal systems. They are discussed in

Part III, infra.

B. Same-Sex Unions

1. Same-Sex Unions Unions Are is Recognized in Very Few U.S. States and

Very Few Nations

The legal status of same-sex and non-marital heterosexual unions in the legal systems of the world contributes to an understanding of the jurisprudence of marriage and other adult intimate relationships. As indicated in Appendix I, Same-sex marriage is legal in the United

International Marriage and Divorce Regulation and Recognition, 29 Fam. L. Q. 497-720 (1995) (articles reviewing marriage requirements in sixteen nations around the world). 5 See generally Marriage in International Encyclopedia of Comparative Law __; William Goode, World Changes in Divorce Patterns __ (1993); ** . With the acceptance of liberal grounds for divorce in most countries around the world in the last century, it can no longer be said that expectation of a lifelong relationship is the global legal norm, though it seems still to be the global social ideal and moral aspiration.

5 States in only two (only 4%) of the states, Massachusetts and Connecticut. (Same-sex marriage was briefly legal by judicial decree in a third state, California, after the state supreme court mandated same-sex marriage on May 15, 2008,6 but sufficient signatures were gathered to put on the subsequent ballot a proposed amendment by popular initiative, Proposition 8, providing that

“[o]nly a marriage between a man and a woman is valid or recognized in California.” Proposition

8 was convincingly approved by the voters (by a 600,000 vote margin) on November 4, 2008, overturning the legalization of same-sex marriage in California.7 It is significant that same-sex marriage has been legalized in the United States only by judicial decree.8

In six other (12 % of the) states (two acting under judicial compulsion) statutes have been adopted creating new legal domestic status relationships for same-sex couples that are equivalent to marriage, but called something else (usually “civil unions”).9 Four additional states (8 % of the

6 In re Marriage Cases, 183 P.2d 284 (Cals. 2008). 7 California Secretary of State, Votes for and Against November 4, 2008, State Ballot Measures, at http://www.sos.ca.gov/elections/sov/2008_general/7_votes_for_against.pdf (seen 22 January 2009) (showing that Proposition 8 received 7,001,084 “for” votes (52.3%) and 6,401,482 (47.7%) “against” votes). 8 Goodridge v. Dep’t. of Pub. Health, 798 N.E.2d 943 (2003); In re Marriage Cases, 183 P.3d. 384 (Cal. 2008); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008). The California legislature has attempted to legalize same-sex marriage but the people of California have explicitly rejected such endeavors and have twice by ballot initiatives defined marriage as a conjugal union only.In re Marriage Cases, 183 P.3d 384, 409–10, 410 n.17 (Cal. 2008); Cal. Const. art. 1, § 7.5. 9 The states are California (arguably still allowed after In re Marriage Cases), Connecticut, New Hampshire, New Jersey, Oregon, and Vermont. CAL. FAM. CODE § 297 (2009); CONN. GEN. STAT. § 46b (2009); N.H. REV. STAT. ANN. § 457-A:1 (2009); N.J. Stat. Ann. § 37:1-28 (2009); OR. REV. STAT. tit 11, ch. 106, Refs and Annos (2008); VT. STAT. ANN. tit. 15 § 1201(2008). See infra note ___. In Vermont and New Jersey, the legislation was mandated by a judicial decree. Baker v. State, 744 A.2d 864 (Vt. 1999); Lewis v. Harris, 908 A.2d 196 (N.J. 2006). The Oregon legislation has been enjoined temporarily. It was to take effect in January 2008, but a group of citizens collected signatures to invoke a procedure under the Oregon Constitution that prevents any law passed by the legislature from taking effect until after the people have voted on whether to approve the law, if enough citizens sign petitions invoking that procedure as to a particular law. The petitions on their face contained more than the 55,179 required signatures, but upon review by state election officials, some of the signatures were disqualified and the petitions fell 96 signatures short of the number needed to stop the law from taking effect and to put it on the

6 states) and the District of Columbia have extended by legislation a few, specific rights and benefits of marriage to same-sex couples (often called “domestic partner” or “reciprocal beneficiary” benefits or registries), but do not provide marriage-equivalent legal status or benefits.10 In summary, only one-quarter of American states give any significant legal benefits to same-sex couples, and in only one-sixth of the states are they given marriage-equivalent rights.

Internationally, the picture is the same. There are now 192 sovereign nations recognized by the United Nations.11 Of that number, as Appendix I shows, only six nations (three percent of all nations) provide same-sex marriage; fourteen nations (another seven percent) provide legal benefits to same-sex couples that are largely equivalent to legal benefits provided to married couples; while another nine nations provide some limited benefits to same-sex couples (another five percent). In summary, only about one-seventh of sovereign nations give any significant marital benefits or status to same-sex couples, and only one-tenth of sovereign nations give those couples marriage-equivalent marital rights.

2. Same-Sex Unions With Marriage-Like Status Are Rejected in Most

Jurisdictions

Rejection of same-sex marriage and marriage-equivalent unions reflects a much stronger and broader grassroots movement in America and internationally. As Appendix II shows, in the

November 2008 ballot. However, some disappointed petition signers filed suit in federal district court asserting that some signatures were wrongfully disqualified, and the court granted a preliminary injunction so that a hearing could be held in February to consider the evidence. Suzanne Pardington, Judge halts civil-unions law, THE OREGONIAN, Dec. 29, 2007, [page number?] available at http://www.oregonlive.com/oregonian/stories/index.ssf?/base/news/1198902321260710.xml&col l=7 (last seen 17 January 2007). 10 These states are Alaska, Hawaii, Maine and Washington. See infra Appendix I.s 11 United Nations Member States, available at http://www.un.org/members/growth.shtml (last seen February 7, 2009) (Montenegro, admitted to the U.N. in 2006, is the latest member state).

7 past decade thirty (30) states (that is sixty percent of all American states) have passed a constitutional amendment defining marriage as the union of husband and wife,12 including nineteen state constitutional amendments that also prohibit creation of marriage-equivalent same- sex civil unions (however labeled). Forty-five states have passed their own “defense of marriage” policies by statute, constitutional amendment, or both. Such “defense of marriage policies effectively prohibit courts in those states from recognizing same-sex marriages performed in other jurisdictions, and also express strong public policy in the states barring same-sex marriage recognition.13 Most American states (36 states) have rejected allowing either marriage or any marriage-like legal status or marital benefits for same-sex couples.14 Forty-eight American states now recognize marriages as the union between a man and a woman only;15 forty-five states by specific statutory or constitutional provisions recognize marriage as the union of a husband and

12 Ala. Const., amdt. 774; Alaska Const., Art. I, sec. 25; Ark. Const., Amdt. 83; ARIZ. CONST., art. 30, § 1 (Prop. 102); CAL. CONST. art. 1, § 7.5 (Prop. 8); Colo. Const., Art. II, sec.31; FLA. CONST. art. 1, § 27 (Amend. 2); Ga. Const., Art I, sec. 4 par. 1; Idaho Const., Art. III, sec. 28; Kan. Const. Art. 15, sec. 16; Ky. Const., Sec. 233A; La. Const., Art. XII, sec. 15; Mich. Const., Art. I, sec. 25; Miss. Const., Sec. 263-A; Missouri Const., Art. I, sec. 33; Mont. Const., Art. Art. 13, sec. 7; Neb. Const., Art. I, sec. 29; Nevada Const., Art. I, sec. 21; N.D. Const., Art. XI, sec. 28; Ohio Const., Art. XV, sec. 11; Okla. Const., Art. 2, sec. 35; Ore. Const., Art. XV, sec. 5a; S.C. Const., Art. XVII, sec. 15; S.D. Const., XXI, sec. 9; Tenn. Const., Art. XI, sec. 18; Tex. Const., Art. I, sec. 32; Utah Const., Art. I, sec. 29; Va. Const., Art. I, sec. 15-A; Wisc. Const., Art. XIII, sec. 13. 13 This includes the 30 marriage amendment states (note 249, above), plus the following 15 states which have adopted statutory marriage recognition acts but no constitutional provision. Ariz. Rev. Stat. Ann. § 25-101; Cal. Fam. Code § 308.5; Del. Code Ann. tit. 13, § 101; Fla. Stat. Ann. § 741.212; Haw. Rev. Stat. § 572-3 (1999); 750 Ill. Comp. Stat. Ann. § 5/212; Ind. Code § 31- 11- 1-1; Ia. St. 595.2 (2002); Me. Rev. Stat. Ann. tit. 19-A, § 701; Minn. Stat. Ann. § 517.01; N.H. Rev. Stat. Ann. § 457:1 to 3; N.C. Gen. Stat. § 51-1.2; Pa. Consol. Stat. Ann. § 1704; Wash. Rev. Code Ann. § 26.04.020; W.Va. Code § 48-2-603 (2002). 14 See generally Lynn D. Wardle, A Response to the “Conservative Case” for Same-Sex Marriage: Same-Sex Marriage and the Tragedy of the Commons, 22 B.Y.U. J. PUB. L. 441. See also 15 The only states that do not bar same-sex marriage by positive law or judicial decision are Massachusetts and New Mexico.

8 wife only,16 and three more states have reached the same conclusion by judicial interpretation of existing statutes.17

Internationally, the legal rejection of same-sex marriage is the dominant and growing rule of law. Thirty-seven nations—nineteen percent (19%) of 192 sovereign nations recognized by the United Nations—have constitutional provisions that define marriage as a conjugal union of a man and a woman.18 This is a recent, modern trend—thirty-six of those thirty-seven national constitutions have been adopted since 1970!19 By contrast, the language of no national constitution expressly protects or requires same-sex marriage.20 Additionally, same-sex marriage is prohibited by statute, common law, or binding legal custom in many other nations that do not explicitly forbid same-sex marriage in their constitutions.21

16 See Notes 249 & 250, infra. Additionally, Maryland, Vermont, Wyoming, and Connecticut, have adopted statutory language recognizing marriage as the union of husband and wife. Conn. Gen. Stat. Ann. § 46b-38nn; Md. Code § 2-201; Wyo. Stat. Ann. § 20-1-101; 15 Vt. Stat. Ann. § 8. 17 Chambers v. Ormiston, 935 A.2d 956 (R.I. 2007); Hernandez v. Robles, 7 N.Y.3d 338 (2006); Lewis v. Harris, 908 A.2d 196 (N.J. 2006). 18 See Constitutions of Armenia (art. 32); Azerbaijan (art. 34); Belarus (art. 32); Brazil (art. 226); Bulgaria (art. 46); Burkina Faso (art. 23); Cambodia (art. 45); Cameroon (art. 16); China (art. 49); Columbia(art. 42); Cuba (art. 43); Ecuador (art. 33); Eritrea (art. 22); Ethiopia (art. 34); Gambia (art. 27); Honduras (art. 112); Japan (art. 24); Latvia (art. 110);* Lithuania (art. 31); Malawi (art. 22); Moldova (art. 48); Montenegro (art. 71); Namibia (art. 14); Nicaragua (art. 72); Paraguay (arts. 49,51,52); Peru (art. 5); Poland (art. 18); Serbia (art. 62); Somalia (art. 2.7); Suriname (art. 35); Swaziland (art. 27); Tajikistan (art. 33); Turkmenistan (art. 25); Uganda (art. 31); Ukraine (art. 51); Venezuela (art. 77); Vietnam (art. 64). 19 The other nation with a constitutional provision limiting marriage to male-female couples is Japan, whose Constitution was adopted in 1947. 20 However, by creative judicial interpretation of equality provisions, not marriage provisions, courts in Canada and South Africa have distilled a requirement for legal recognition of same-sex marriage. See Harrison v. Canada, [2005] 290 N.B.R.2d 70 (Can.); Fourie v. Minister of Foreign Affairs 2005, http://41.208.61.234/uhtbin/cgisirsi/20090220192838/SIRSI/0/520/S-CCT60-04 (S. Afr.). 21 See, e.g., Austria, Cristoph Bezemek, Cross-border Same-sex Marriage, 2008 Vienna Online Journal on International Constitutional Law 65, 66 (2008), http://www.internationalconstitutionallaw.net/download.php? ec2de7d0421315da6088a90ee6c99620 (quoting § 44 Austrian Civil Code: “Family relations are established by matrimonial agreement. In the matrimonial agreement two persons of the opposite sex legally declare their will to live in inseparable alliance, to procreate children, to parent them

9 The overwhelming global non-allowance of same-sex unions comes as no surprise to students of comparative family law. Since World War II, explicit constitutional protection of conjugal marital families has been considered one of the foundations for the nurturing and protection of human rights. Thus, the written constitutions of at least 145 of the 192 sovereign nations on the earth today (76%) have language about the fundamental importance of the family and its special status in their national charters or constitutions. 22 At least 83 national constitutions

(43% of all sovereign nations) contain language according special protection or status to marriage;23 none of these marriage protection constitutional provisions expressly protects or requires same-sex marriage, while nearly half of them (37 nations, or 45% of the nations with marriage-protecting constitutional provisions) have adopted language in their constitutions protecting marriage as the union of man and woman.24 and to stand by each other.”); AUSTRIA CONST. (Oceana, Constitutions of the Countries of the World, Austria Const. current through 2007 amendments) (no explicit Austrian constitutional ban against same-sex marriage); Denmark, Linda Nielsen, Equality and Care in Danish Family Law and Law of Inheritance, in 171 DANISH LAW IN A EUROPEAN PERSPECTIVE (Borge Dahl et. al., eds. (1996) (statutory prohibition of same-sex marriage); DENMARK CONST. (Oceana, Constitutions of the Countries of the World, Denmark Const. current through 2007 amendments) (no explicit Danish constitutional ban against same-sex marriage);.France, Sylvia Hargreaves, Family Law, in PRINCIPLES OF FRENCH LAW 249, 251 (John Bell, Sophie Boyron & Simon Whittaker eds. 1998) (“Although it is not expressly stated, article 144 of the Civil Code leaves no doubt that persons entering marriage must be respectively male and female, thus excluding homosexual or lesbian marriages.”); FRANCE CONST. (Oceana, Constitutions of the Countries of the World, France Const. current through 2008 amendments) (no explicit French constitutional ban against same-sex marriage); Germany, Dieter Martiny, Family Law, in INTRODUCTION TO GERMAN LAW 251, 254 (J. Zekoll & M. Reimann eds., 2d. ed. 2005); FRANCE CONST. (Oceana, Constitutions of the Countries of the World, Germany Const. current through 2006 amendments) (no explicit German constitutional ban against same-sex marriage); and Mexico, Mexican Civil and Commercial Codes, Articles 139–149, at 73–75 (West, Abraham Eckstein & Enrique Zepeda, trans., 1995); MEXICO CONST. (Oceana, Constitutions of the Countries of the World, Mexico Const. current through 2006 amendments) (no explicit Mexican constitutional ban against same-sex marriage). 22 See Lynn D. Wardle, Federal Constitutional Protection for Marriage: Why and How, 20 BYU J. Pub. L. 439, 483 (App. II) (listing 35 international treaties, charters, conventions and other instruments with provisions acknowledging the importance of families and/or marriage. 23 Id. at 454 (listing 78 nations). See further Appendix **__ (include list of 83 not 78) 24 Id. at 454.

10 For example, the Universal Declaration of Human Rights recognizes that “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the

State.”25 Similar statements about the foundational importance and specially-protected role of families are found in dozens of other international conventions, compacts and instruments,26 such as the International Covenant on Civil and Political Rights,27 the International Covenant on

Economic, Social and Cultural Rights,28 the Convention on the Elimination of All Forms of

Discrimination Against Women,29 the Hague Convention on the Civil Aspects of International

Child Abduction,30 and the Convention on the Rights of the Child.31

Some advocates of same-sex marriage have long argued that these documents should be interpreted to provide a right to same-sex marriage. Those claims have been notably unsuccessful. These human rights charters have not been interpreted as requiring member states to redefine marriage to include same-sex couples. For example, in Joslin, et al. v.New Zealand,

25 Universal Declaration of Human Rights, Art. 16 (3), G.A. Res. 217A U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948). See generally Mary Ann Glendon, Knowing the Universal Declaration of Human Rights, 73 NOTRE DAME L. REV. 1153 (1998); Don Browning, The Meaning of Family in the Universal Declaration of Human Rights in 1 THE FAMILY IN THE NEW MILLENNIUM 38 (2007); See also Jane Adolphe, The Holy See and the Universal Declaration of Human Rights: Working Toward a Legal Anthropology of Human Rights and the Family, 4 AVE MARIA L. REV. 343 (2006). 26 See Lynn D. Wardle, Federal Constitutional Protection for Marriage: Why and How, 20 BYU J. PUB. L. 439, 483 (App. II) (listing 35 international treaties, charters, conventions and other instruments with provisions acknowledging the important of families and/or marriage. 27 International Covenant on Civil and Political Rights, art. 23, G.A. Res. 2200 A (XXI) of 16 Dec. 1966. 28 International Covenant on Economic, Social and Cultural Rights, art.10 § 1, G.A.Res. 2200, annex, 21 GAOR Supp. 16, U.N.Doc. A/6316, at 49 (1966), opened for signature Dec. 19, 1966, 993 U.N.T.S. 3, 6 I.L.M. 360 (1967), entered into force Jan. 3, 1976. 29 Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13, 19 I.L.M. 33 (1980). 30 The Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, available at http://www.hcch.net/index_en.php? act=conventions.text&cid=24. The Convention became enforceable on Dec. 1, 1983. 31 Convention on the Rights of the Child, preamble, G.A. Res. 44/25, U.N. GAOR, 44th Sess., U.N. Doc. A/Res/44/25 (Nov. 20, 1989).

11 the United Nation’s Human Rights Committee affirmed in 2002 that the internationally recognized civil right of marriage created by the International Covenant on Civil and Political

Rights confers the obligation on states “to recognize as marriage only the union between a man and a woman wishing to marry each other.”32 This became the touchstone of understanding of these human rights documents, and the various member states have been left to determine for themselves what recognition will be given other domestic relationships. Similarly, in Rees v.

United Kingdom, the European Court of Human Rights held that the right to marry, as protected by the European Convention on Human Rights, applies only to “traditional marriage,” leaving the individual states free to individually determine the nature and degree of recognition to extend other relationships.33 While it is to be expected that some pro-same-sex-union success will come, given the political nature of the issue, the consistent, overwhelming rejection of the claim for same-sex marriage in the global arena to this point is both clear and noteworthy.

Thus, as a matter of comparative constitutional law and in international law the trend is against same-sex marriage, not for it. The global norm is not to recognize same-sex marriage, and to protect as a matter of international human rights the ability of each nation to settle that policy issue for itself.

C. Other Adult Intimate Relations: Heterosexual Non-Marital Cohabitation

The status of non-marital heterosexual cohabitation without marriage is quite tenuous in the United States of America.34 No American state extends generally full marital rights and

32 (U.N. Hum. Rts. Comm. 2002), Communication No.902/1999, U.N. Doc. A/57/40, 214. 33 Rees v. United Kingdom, (Eur. Ct. Hum. Rts. 1986) 9 EHHR 56. 34 See, e.g., Margaret M. Mahoney, Forces Shaping the Law of Cohabitation for Opposite Sex Couples, 7 J. L. & FAM. STUD. 135 (2005); Ann Laquer Estin, Ordinary Cohabitation, 76 NOTRE DAME L. REV. 1381 (2001); J. Thomas Oldham, Lessons from Jerry Hall v. Mick Jagger Regarding U.S. Regulation of Heterosexual Cohabitants or, Can’nt Get No Satisfaction, 76 NOTRE DAME L. REV. 1409 (2001); Milton C. Regan, Jr., Calibrated Commitment: The Legal Treatment of Marriage and Cohabitation, 76 NOTRE DAME L. REV. 1435 (2001). See further Carol Bruch, Nonmarital Cohabitation in the Common Law Countries: A Study in Judicial-

12 benefits to cohabiting non-marital non-gay couples. Few states provide any benefits by statute specifically for unmarried cohabitants. Professor Margaret Mahoney has noted that “the relationships established between cohabiting, opposite sex couples are not regarded as family status relationships for most legal purposes.”35 She identifies only five state legislatures, (Hawaii,

Vermont, California, New Jersey and Maine) that have enacted domestic partnership laws with state-wide application, and thirty-five municipalities that have enacted domestic partnership ordinances.36 However, “[m]ost of the enacting jurisdictions are municipalities, where the primary rights established are employee benefits for public employees with domestic partners, such as family health benefits.”37 Professor Tom Oldham has noted, in his review of the status of nonmaritial cohabitation in the United States, that “because in most states cohabitants have no

‘status’ -like rights, regardless of the duration of the cohabitation or whether the relationship was childless or minor children were in the household, an ‘unmarried’ couple can cohabit for a long period and raise children and still have no rights or obligations (other than child support) when the relationship ends.”38

Additionally, under “palimony” and similar judicial doctrines some states allow cohabitants to claim a share of the property acquired by their former partner during cohabitation, or to assert claims for support or equitable claims to some property or financial assets or income

Legislative Interaction, 29 AM. J. COMP. L. 217 (1981); Grace Ganz Blumberg, The Regularization of Nonmarital Cohabitation: Rights and Responsibilities in the American Welfare State, 76 NOTRE DAME L. REV., 1265 (2001). 35 Margaret M. Mahoney, Forces Shaping the Law of Cohabitation for Opposite Sex Couples, 7 J. L. & FAM. STUD. 135, 160 (2005). 36 Mahoney, supra note __, at 160. These numbers may include jurisdictions that have domestic partnership or such status for only same-sex couples as well as jurisdictions that have domestic partnership or such status for heterosexual couples alone or both same-sex and heterosexual couples. 37 Mahoney, supra, note __, at 161. 38 Oldham, supra note __, at 1411.

13 of their former partner.39 However, recovery of claims under these judicial doctrines has proven very difficult. For example, in the seminal 1976 “palimony” case, Marvin v. Marvin,40 even though the California Supreme Court authorized many different possible routes to establish a palimony claim (including written contract, oral contract, implied contract, quantum meruit, partnership, implied partnership, constructive trust, unjust enrichment, and other equitable theories), the plaintiff, Michelle Marvin, was unable to prove any basis for palimony recovery and received nothing.41 Moreover, the financial security provided for non-marital cohabitants by these doctrines is very limited. As Professor Ann Laquer Estin wrote,

Taken altogether, the legal norms of ordinary cohabitation developed in the quarter century since Marvin are not particularly generous. Only a small percentage of cohabitants will have even a possibility of legal recovery when their relationships end. To the extent that these rules have any effect on the choice between cohabitation and marriage, they are likely to encourage marriage for anyone seeking financial security and to encourage cohabitation rather than marriage for anyone seeking to avoid financial commitments.42 Globally, non-marital cohabitation by heterosexuals is given some legal recognition and quasi-marital benefits in some foreign nations under some (usually restricted) circumstances. But counting, let alone classification, is extremely difficult because of the substantial difference between the legal systems and because of the frequency of marginal or informal protections afforded heterosexual nonmarital couples or partners. Many of the current legal practices, provisions, statuses and benefits provided for heterosexual non-marital couples are vestiges of former times when concubinage and similar relations were wide-spread and divorce was very difficult or impossible to obtain;in some cases, such protections for heterosexual non-marital couples functioned (especially among the poor) like a form of common law marriage.43 As in the

39 See, e.g., Marvin v. Marvin, 176 Cal. Rptr. 555 (Cal. App. 1981). 40 557 P.2d 106 (Cal. 1976). 41 Marvin v. Marvin, 176 Cal. Rptr. 555 (Cal. App. 1981). 42 Estin, supra note __, at 1402-1403. 43 See generally Lynn D. Wardle, Deconstructing Family: A Critique of the American Law Institute's “Domestic Partners” Proposal, 2001 B.Y.U. L. Rev. 1189, 1206 (2001) (reviewing

14 United States, it appears that more countries give some domestic partnership registration, status or benefits to same-sex non-marital couples than to heterosexual non-marital couples. As

Professor Mahoney explains,

[M]any foreign laws impose significant limitations on domestic partnership status eligibility for opposite sex cohabitants by restricting the status to same sex couples, and by excluding nonformalized, unregistered relationships. Furthermore, the substantive legal consequences for recognized opposite sex domestic partners are quite limited in many countries. Still, by comparison to the laws of many other nations, the legal recognition extended to opposite sex cohabitation as a significant family relationship in the United States is minimal.44

From a comparative law perspective, it is hard to draw any conclusion from the practice of giving some legal recognition to some non-marital heterosexual relations in some foreign nations. The diversity of practice, the variety of approaches, the divergences in the legal systems, and the wide variations in the extent, scope and type of recognition or benefits extended and the conditions for obtaining them are so great, and the holes in the data are so great, as to make even broad comparisons misleading at best and analytically unreliable.

Overall, the comparative-trends claims and suggestions in Beyond are not well-founded or persuasive. With regard to same-sex marriage in particular, but also for marriage-equivalent unions, the status and trend is clearly and strongly contrary to legal recognition in the United

States and globally. With regard to heterosexual non-marital relationships, while some other countries clearly do offer some non-marital couples greater legal recognition or benefits than most American states, the record is quite ambiguous, the differences among those other systems are vast, and the practices of other nations (such as concubinage) often proceed from a history of class, gender, and economic exploitation and corruption that hardly makes those practices a model for our nation or legal system. history and doctrine of concubinage). 44 Mahoney, supra note __, at 163.

15 III. The Philosophy Behind the Unique Legal Preference for Conjugal Marriage

Understanding the jurisprudence of marriage and other adult intimate relationships requires not only understanding the body of laws that regulates marriage, but also comprehension of the underlying “philosophy of [the] law” that undergirds and makes conceptually coherent the body of laws regulating marriage.45

The jurisprudence of marriage assumes and expresses some fundamental assumptions about goods and realities of life and of marriage that today are somewhat controversial and contested. 46 Those fundamental assumptions are reflected in the legal qualifications for and obligations of marriage described in the preceding section (II). These include such values as liberty and accountability, sexual and emotional fidelity,

The requirement of voluntary agreement by each of the parties reveals that individual liberty in entering (or not) into marriage in particular (and perhaps into legal contracts in general) has high value in the legal system. However, the fact that there are five other universal marriage requirements that curtail the exercise of individual liberty to enter into marriage (forbidding bigamous or polygamous marriage, marriages with children, marriage with close relatives, etc.)

45 Jurisprudence in Oxford English Dictionary Online (herein “OED-O”), available at http://dictionary.oed.com.proxlaw.byu.edu/cgi/entry/50124819? single=1&query_type=word&queryword=jurisprudence&first=1&max_to_show=10 (seen 25 February 2009); Jurisprudence in Black’s Law Dictionary 992 (Rev. 4th ed. 1968) (herein “Blacks”); jurisprudence in Merriam-Webster Online (herein “M-WO”), at http://www.merriam- webster.com/dictionary/jurisprudence (seen 25 February 2009). Closely related to this definition is the meaning “the science which treats of human laws.” OED-O, supra note __; Blacks, supra note __, at 992; M-WO, supra note __. 46 I have no pretentions of expertise in philosophy of any kind, but having taught, researched, and thought about marriage law for over three decades I have some basis for reasonably discussing the fundamental principles of legal policy that underlie marriage regulations in the United States as well as from the perspective of comparative international family law.

16 demonstrates that individual liberty is not fully autonomous, but is legally constrained by social consensus about other needs and goods of society.

The common requirement of monogamy, limiting marriage to a dyadic relationship, which historically may be the newest and thinnest of the common marriage requirements, assumes relational exclusivity of and by both parties is necessary for a successful marriage. It also suggests that both parties have the equal duty of exclusive sexual intimacy -- fidelity. It conveys the value that the relationship of marriage is unique as to the couple, and connotes the high value accorded to dyadic loyalty in marriage.

The universal requirement of competency is based on an assumption of the accountability fairness concept of justice. It reveals that a minimum measure of mental capacity is assumed to be necessary to succeed in the relationship of marriage. It also may suggest that a baseline of mental capacity is deemed a prerequisite for full personhood in the society, and that protection of those lacking full mental capacity is deemed a purpose of the law.

The common age (adulthood) requirement likewise indicates that judgmental maturation

(linked with age-experience) is deemed a requirement for the particular relationship of marriage.

It also suggests that protection of age-vulnerable (young) persons in the particular context of marriage (e.g., from potential sexual, procreational and other marriage-related exploitation), and perhaps from exploitation generally, is a function of the law generally in the society.

The common universal requirement of exogamy reveals the value accorded to protecting close consanguineous (and often also affinity) relationships from the competition for the sexual and procreational aspects of marriage. It assumes a protective function of the law regarding close familial relations for the benefit of the most vulnerable (young, old, female, less-affluent).

It (along with the competence and age requirements) underscores the notion that family laws and

17 the legal system in general have a special protective function and purpose regarding the vulnerable in society. This element, also, distinguishes marriage from other types of relationships (e.g., close relatives are not forbidden to form business partnerships with each other, for example).

The historically ubiquitous and still nearly universal dual-sex, male-female nature of marriage reveals at least three critical underlying belief about sex differences: (a) that men and women are different, (b) that those gender differences are distinctively complementary and reciprocally reinforcing with respect to the social purposes of marriage, and (c) therefore, that the union of a man and woman is uniquely and exclusively qualified for the legal institution marriage. Clearly, the procreational aspect of marriage is linked to the dual sex requirement, for only a man and woman can procreate; two persons of the same gender may buy, adopt, or take children generated with or by others, but they are biologically/physiologically incapable of bearing children together; so marriage undergirds responsible parenting and links procreation to responsible parenting.47 However, there is much more depth to the conjugality aspect of marriage than procreation and responsible parenting. Wives turn mere individual men into husbands; and husbands help ordinary women to become wives. Husbands and wives contribute much more to society, create much more social capital, then unmarried men and women. Husbands and wives act more responsibly, are more charitable, have more empathy and sympathy, are more service- giving. Husbands and wives are more productive, are safer in their behaviors and lifestyles.

Wives civilizes men (by making them more cautious and responsible for the sake of their family)

47 Lynn D. Wardle, AMultiply and Replenish@: Considering Same-Sex Marriage in Light of State Interests in Marital Procreation, 24 HARV. J. L. & PUB. POL=Y 771, __ (2001).

18 and husbands communitize women (by making them more willing to give and extend themselves for the sake of the community).48

The universal legal and social sanctioning of sexual relations and procreation within marriage assumes that marriage provides an advantageous, preferred environment for the expression of sexual intimacy and for procreation. It suggests that sexual relations outside of marriage are less desirable, perhaps undesirable, possibly socially harmful, and that procreation outside of marriage are less desirable, perhaps undesirable, possibly harmful to children and to society. Thus, this element distinguishes marriage from other relationships.

The general mutual support duty of marriage assumes that labor and material resources are needed for marriages to succeed. It also assumes that contribution of labor and/or resources from both parties will be necessary to make a successful marriage. This requirement also distinguishes marriage from other non-commercial relationships.

The expectation and aspiration for permanence in marriage indicates that the object of marriage is long-term, not transitory. Certainly, the raising of offspring until the age of accountability in society is a long-term undertaking (eighteen years in contemporary American states), but there is more to the expectation of lifelong bonding than this. It suggests that the building of a real marriage relationship takes time, must weather some storms, must face and overcome some adversities, and involves sharing a variety of experiences that do not all come at once or in any single age of life. It suggests that marital love is deep, not merely a transitory hormonal or “honeymoon” attraction, and that it takes years to mature, ripen and develop. It suggests that those who never get beyond the first couple of years or decades of marriage have yet to discover the profound meaning, values, and joys of real marriage. The social expectation

48 Special Report, Gay Marriage, Catholic Answers, available at http://www.catholic.com/library/gay_marriage.asp (seen 10 March 2009).

19 (and historic legal requirement) teaches that marriage is a life-long process of maturation, discovery and caring. Those who give up and drop out cheat themselves and each other, and often their children, of the rich fullness of marriage and marital family living.

Many of these elements and characteristics of marriage distinguish marriage from other types of relationships. For example, close relatives are not forbidden to form business partnerships with each other; nor must business partners be of opposite sexes. No other relations or types of relations carry an assumption in favor of and expecting or promoting sexual intimacies and procreative relations intimacies. The legal limitation of the relationship to dyadic relationships of only two parties is also unique to marriage; business and social relationships may include three or three hundred partners, investors, or members. Commercial and civil contracts are seldom expected to last a lifetime.

The dual sex/gender aspect of the jurisprudence of marriage is linked to nearly all of the other universal requirements. For instance, marital age is related to the male-female aspect of marriage, for only conjugal sex involves the concern that age development protects; in some societies in which homosexual relations were accommodated, sex with young boys was common and accepted while marriage assumed a degree of mutual age maturity. Likewise, the dual gender/sex element is related to the consent element, for the consent of homosexual boy partners

(essentially sex slaves?) historically was not essential, while for centuries the consent of the female in particular has been carefully guarded (perhaps due in part to the serious procreative potential consequences, but also because of the serious emotional dimensions of conjugal sexual relations which have not been of significant concern in – or perhaps been generally deemed absent in -- historical homosexual relations). Likewise, the marriage requirement of mental competence is related to understanding and being able to deal with a person of the opposite sex;

20 less judgmental maturity is needed if one is dealing only with a partner of the same sex, which is less complicated and less strange than a partner of the opposite sex. The requirement of monogamy reflects the nature of mature male-female sexual intimacy; homosexual relations have been and still are characterized by a degree of promiscuity and multiple partner pairings that still (in our sexualized society) is not often associated with, and always condemned when it occurs in, marriage.

Likewise, the duties and privileges of marriage reflect the conjugal nature of the relationship. Conjugality obviously is essential for the procreative element. (For most people, it also is essential for the sexual fulfillment aspect of this element, and it there is overwhelming evidence that childrearing is most successful and least troubled when done by the child’s mother and father.) The support expectation also is directly related to child-rearing which is a function of and result of dual-gender mating. Likewise, the historic gender roles of labor sharing in marriage reflected the dual sex aspect of the relationship; again related primarily but not entirely to child-rearing, nurturing, and gendered nesting. The life-long permanence reflects a conjugal understanding of the lifelong depth or relational learning and bonding possible in conjugal unions.

As a matter of functionalism, it is certainly true historically many of these aspects of marriage were not necessarily and inextricably linked to gender/sex differences, and it is undeniable that in our less-gender-regulated society today, gender-bending cross-overs of marital roles and some of these universal marriage elements are not only possible but are no longer uncommon. Still, despite social pressures for androgenous relational roles, most of these sex- and-gendered marital qualities persist and and are prevalent in all societies.

21 More importantly, the point remains that the jurisprudence of marriage has always been organized and developed around sexual and gender integration reflected in the conjugal union of man and women. That to some measure some elements of the jurisprudence of marriage might be changed (or, arguably, are being changed) only underscores the point that the jurisprudence and institution of marriage cannot be “opened up” to other relationships without undergoing a significant change. For millennia the institution of marriage has been, and today the jurisprudence of marriage remains, founded upon the sexual and gender differences between man and woman. As other relationships differ from the conjugal relationship of male-female marriage, the redefinition of marriage to include those different relationships requires a substantial renovation of the qualities and elements of the jurisprudence of marriage to include and accommodate those different relationships.

B. Eliminating Sex-and-Gender Difference in Law

What impacts would the elimination of the sex-and-gender differentiating aspects of the jurisprudence of marriage have upon marriages generally and upon society? What’s the harm?

Since marriage is the paradigmatic legal institution that embodies, recognizes and protects sex and gender differences between men and women, elimination of the male-female aspect of marriage would have far reaching consequences for feminist jurisprudence conceptually, and for women and girls practically. If the uniqueness of male and female cannot be recognized in marriage law, if gender difference is irrelevant for the institution of marriage, it is difficult to conceive of any context in the law in which gender and sex differences could be justified. For example, if women’s unique social contribution to society within the institution marriage is devalued and leveled by the adoption of same-gender marriage, is it reasonable to believe that women’s unique contributions in any area of social (or economic or political)

22 activity should or would continue to be recognized? Why would the law ever accept that women have a unique voice and make a unique contribution if their contribution to society as wives in marriage is no longer valued or recognized? If gender balance in marriage is not of importance to society, would the value of gender balance in education, in law, in business, and in public life be secure? If sexual apartheid is acceptable in marriage, why not in other social institutions as well?

Because the legal institution of marriage is a almost universally defined as a dual-gender institution, the existence (and global and historical prevalence) of mandatory and exclusively conjugal marriage makes a clear normative statement about, and raises significant philosophical issues about sex and gender differences between men and women. Marriage is the classic and paradigmatic legal institution that recognizes, reinforces, and builds upon sex and gender differences between men and women. Since procreation and conjugal sex are universally involved in and associated with marriage, it is obvious that marriage is concerned at least with physical sex differences. Given that gender roles historically have been, and still, to no small extent, are associated with marriage the institution of conjugal marriage also is about learned gender differences, as well.49 Thus, the institution and law of marriage presents substantial difficulties for some feminist theorists.

It is the requirement of conjugality, of dual-gender partnership, in marriage that holds the key to and is the cornerstone of the jurisprudence of marriage. Marriage is unique in law in the degree to which it requires, recognizes, and emphasizes sex and gender differences. Thus, the jurisprudence of marriage is built to a significant extent upon sex and gender differences.

49 The term sex is generally understood to connote physical-physiological-biological differences between men and women, while gender connotes learned, socially-constructed differences between men and women. However, both terms carry both connotations, and herein the term gender will be used as an inclusive term including both the biological inherent and the socially acquired differences between men and women.

23 For that reason, it is obvious that the extension of such a sex-and-gender differentiated institution and relationship as marriage to same-sex relationships is a very revolutionary and radical proposal. Since marriage has been conceived, created, customized, and cultivated as a sex-and-gender integrative relationship by through so many societies through so many centuries, to emphasize and maximize the positive contributions to society of sex-and-gender differentiated unions, it seems highly unlikely that the marriage could be successfully extended to same-sex couples or that same-sex couples would find the relationship suitable or appropriate for their non-sex-and-gender-differentiated relationship. It would be like forcing a square peg into a round hole.50

Likewise, the notion that marriage can be, at the same time, both a sex-and-gender differentiated domestic relational institution and a non-sex-and-gender differentiated domestic relational institution is more than a little incongruous. It is like saying that marriage can be both a relationship that protect minors against exploitation and that does not protect minors, that marriage can be both an exogamous relationship but also an endogamous institution, that marriage can be both a voluntary institution and also an institution in which forced or coerced union is permitted, or that marriage can be at the same time both monogamous and polygamous.

It is like saying that one can be both pregnant and non-pregnant -- it is difficult to see how it can be both ways.

C. Integrating Gender Difference: A Keystone of the Jurisprudence of Marriage

50 Jeffrey A. Redding, ____*, NeXus Journal 2009 Symposium, February 27, 2009 (forthcoming in NeXus Journal) (marriage is designed for dual gender unions; better to create different legal institutiona for other relationships than to force them to conform to marriage or to force marriage to conform to those expectations) ; see generally Oran Doyle, Moral argument and the recognition of same-sex partnerships in Committed Relationships and the Law 125, 156-57 (Oran Doyle and William Binchy, eds., 2008) (including same-sex couples will break down gender roles in marriage) (is the negative pregnant in Doyle’s argument that forcing same-sex couples into marriage may transform those relations as well?) .

24 Integration of mutually matching, harmonious, corresponding gender differences is an indispensable jurisprudential keystone of the institution of marriage. The jurisprudence of marriage is predicated on the understanding that gender differences between men and women are uniquely fit and mutually, reciprocally, complementary, integrative; dualistic, paired, and exclusively appropriate for the particular and particularly important social purposes and functions of the institution of marriage.

A rich source of legal theory that explores and explains the importance of integrating gender differences is feminist jurisprudence. A major component of feminist jurisprudence addresses gender difference and their relevance for and in law.51 For example, the work of Carol

Gilligan, In a Different Voice, emphasizing the different moral development and dominant concerns of men and women, is well known. I have just begun to explore this remarkable body of jurisprudence and have found significant theoretical support for protection of marriage as an exclusively conjugal institution. In particular, there is already a profound body of literature discussing the legal significant of gender differences in this and related. In particular, French

Feminist theorists, and some Catholic Feminist Jurisprudential writers52 have provided very

51 See, e.g., Katharine T. Bartlett & Deborah L. Rhode, Gender and Law, Theory, Doctrine, Commentary 637-763 (4th ed. 2006); Judith A. Baer, Nasty or Nice Ladies: Jurisprudence, Feminism, and Gender Difference in Feminist Legal Theories 159 (Karen J. Maschke, ed. 1997) (reprinted from 11 Wo. & Politics 1 (1991); Martha L. Fineman, Challenging Law, Establishing Differences: The Future of Feminist Legal Scholarship, 42 Fla. L. Rev. 25 (1990); ** See also Katharine T. Bartlett & Rosanne Kennedy, Feminist Legal Theory: Readings in Law and Gender ___ (1991);√ Chamallas, Introduction for Feminist Legal Theory __ (1999);√ Nancy Levit, Feminist Legal Theory: A Primer __ (2006);√ Nancy Levit, The Gender Line: Men, Women, and the Law __ (1998).√ 52 Elizabeth Schiltz, Does Sharah + John + 3? The History and Future of COmplementarity in Catholic Feminism, paper presented at The Family: Searching for the Fairest Love, Notre Dame Center for Ethics and Culture, Ninth Annual Fall Conference, November 6-8, 2008; Helen Alvare, The Moral Reasoning of Family Law: The Case of Same-Sex Marriage, 38 Loyola U. Chi. L. Rev. 349 (2006); Helen Alvare, The Turn Toward the Self in Marriage: Same-Sex Marriage and its Predecessors in Family Law, 16 Stanford L & Pol’y Rev. 101 (2005); Helen Alvare, Christian Feminism and Family Life: A New Femnism Fit for a New Family?, in Themes in Feminist Theology for the New Millennium II: Proceedings of the Theology Institute of

25 thoughtful jurisprudential insights into the need for and value of the gender integrating aspects of the legal institution of marriage.

In no small part feminist jurisprudence is built upon the struggle to deal with the conundrum of sex and gender differences in the law. On the one hand, historically, laws in all countries abused and misused sex and gender differences to justify the denial to women of significant legal rights and opportunities. Thus, legal recognition of sex and gender differences undeniably is linked historically with unjust and invidious sex and gender discrimination, and with broader ideological patterns and fears of patriarchal oppression and exploitation of women.

Because of this history, allowing the law to recognize sex and gender difference re-opens the potential for abuse and sexual and gender discrimination in the law. Fearful of a revival of patriarchal oppression in and by the law, some feminists vigorously resist any recognition of gender difference in the law.

However, refusal to recognize any gender differences would work injustice in some cases, and particularly could harm the relational interests of women and require ignoring ameliorating differences that compensate for disparate kinds and degrees of performance in some settings. For instance, would the law not be allowed to take account of the special condition of pregnant women, or of mothers of nursing infants? Would unique maternal ties to children be

Villanova University __ (2003);√ Prudence Allen, Man-Woman Complementarity: The Catholic Inspiration, 9 Logos: A Journal of Catholic Thought & Culture 87 (2006); see also Eliszbeth Schiltz, Restructuring the Workplace to Accommodate Famly Life, Forward, 4 St. Thomas L.. (2008);√ Elizabeth Schiltz, Should Bearing the Child Mean Bearing All the Cost? A Catholic Perspective on the Sacrifice of Motherhood and the Common Good, 56 Catho. U. L. Rev. 405 (2007);√ Elizabeth Schiltz, Dueling Vocations: Managing the Tensions between our Private and Public Callings, in Women, Sex and the Church: A Pro-Woman defense of controversial Catholic Teachings (Erika Bachiochi, ed., forthcoming 2009);√ Prudence Allen, The Concept of Woman (vol. 1): The Aristotelian Revolution 750 BC-AD 1250 (1997);√ Prudence Allen, The Concept of Woman (vol. 2): The Early Humanist Reformation, 12500-1500 (2006);√ William E. May, Feminism and Human Sexuality, Part I, Culture of Life Foundation, http://culture-of- life.org//content/view/545/1/ (seen 28 February 2009).

26 deemed totally irrelevant in custody disputes? A group of influential feminists, often called cultural feminists, or relational feminists (particularly revealing of their concern for family interests),53 have argued for even greater recognition in law of appropriate and proportional differences between men and women.

Catholic Feminist thought that is consistent with Roman Catholic theology provides linkage to historical philosophy roots back through Augustine to Aristotle.54 Dr. (and Sister)

Prudence Allen contrasts the unisex notions of Plato and others with the complementarity taught by Augustine, Hildegard, and Aquinas, and with the principle, taught recently by Pope John Paul

II, that we define ourselves through relations with others. This feminism notes the distinction between integral and fractional personalism; and asserts that giving ourselves to others is the only path to full self-realization.55 Gender difference in marriage is seen as not only the exclusive path to fulfillment of the social purposes of marriage but to full individual development and fulfillment, as well.

“[French] Feminists have long debated theories of difference. Since the

1970s, French feminist theory, led by Hélène Cixous, Julia Kristeva, and Luce

Irigaray, has delved into issues of women's difference from men.”56 . For example,

the writing of Luce Irigaray has long emphasized the fundamental difference

between women and men. One of her most well known works, This Sex Which Is

Not One, explored the social meaning of women's biological difference from men.

As men are unitary, women are multiple, Irigaray argued, even down to their

genitalia. Women's multiplicity puts them in the social position of focusing on

53 Bartlett & Rhode, supra note __, at 637. 54 Schiltz,*__; Allen *__. 55 Schiltz, ** 56 Rosenblum, supra note __, at 1160.

27 relational behavior. Irigaray explored how women's language expressed this

relationship-centered existence, in which women constantly relate to others,

consistently referring to their interlocutors.57

Francoise Gaspard has written: ”Together, women and men combine to define and perpetuate the species. Together, they should combine in equal numbers to organize communal life ... not in the name of the difference of one sex in relation to the other, but in the name of their dual participation in the human race.”58 Both men and women constitute “half of the universal” and recognition of that fact in law does not offend universalism, equality or violate anti-quota concerns.59

The French Feminists have developed the concept of “parity” (meaning perfect equality) to such a point that now French election law requires a degree of parity in electoral politics.

French political parties are required to nominate and (ideally) equal numbers of candidates of both sexes so that the views and voices of both sexes will be offered to the public and equally represented in the public affairs and activities of the government and nation. “Parity, unlike quotas, was not to establish some minority representation, but rather to give representation to women.”60

~**

IV. Calls for Equal Status, Legal Treatment and Benefits for All Adult Intimate Relationships

There has been a significant eruption of law review articles and legal books advocating that all adult intimate relationships are generally equivalent, and that all adult intimate

57 Id. at 1161. 58 Rosenblum, supra note __, at 1162, citing Gaspard * 59 Id. at 1164. 60 Id., at 1163.

28 relationships should be treated equally in the law. While there are subtle differences between various approaches and positions advocated, the common theme is that conjugal relations deemed marriages are unjustly privileged, and that other forms of adult intimate relationships generally merit equivalent status, benefits and protections in the law.

Among the most well-known and influential is the writing of Martha Fineman, whose

Neutered Mother is one of oldest and most-frequently cited work of this genre.61 Professor

Fineman argues that there is no valid reason to elevate a monogamous, adult, conjugal sexual relationship to a privileged position in the law. As long as the institution of marriage continues to exists, she writes:

It will continue to occupy a privileged status and be posited as the ideal, defining

other intimate entities as deviant. Instead of seeking to eliminate the stigma by

analogizing more and more relationships to marriage, why not just abolish the

category as a legal status and, in that way, render all sexual relationships equal

with each other and all relationships equal with the sexual?62

Her primary proposal specifically argues that the mother-child (or, more generally, caregiver- dependent) dyad of nurture-dependency should replace conjugal marriage as the primary relationship privileged and protected in law.63 She has written: “[F]or all relevant and appropriate societal purposes, we do not need marriage and should abolish it as a legal category, transferring the social and economic subsidies and privilege it now receives to a new family core connection

61 MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES (1995). 62 Id. at 230. 63 Martha Albertson Fineman, The Meaning of Marriage, in MARRIAGE PROPOSALS: QUESTIONING A LEGAL STATUS 29, 30 (Anita Bernstein, ed., 2006) (“[F]or all relevant and appropriate societal purposes, we do not need marriage and should abolish it as a legal category, transferring the social and economic subsidies and privilege it now receives to a new family core connection— that of the caretaker-dependent.”).

29 —that of the caretaker-dependent.”64 She also endorses the view of others advocating that marriage be abolished as a legal category and that it “should be replaced by contract in the first instance, allowing couples to structure their own relationships in the way they want.”65

More broadly, Nancy Polikoff’s latest book, Beyond (Straight and Gay) Marriage, 66 is subtitled “Valuing All Families under the Law,” and that subtitle succinctly summarizes the main theme of her book. Her argument for treating all adult relationships of intimacy the same in the law (equalizing marriage and non-marital relationships) hinges on a claim for equal dignity and for equal legal benefits. She argues that “[c]ouples should have the choice to marry based on spiritual, cultural or religious meaning of marriage in their lives; they should never have to marry to reap specific and unique legal benefits.”67 She maintains that: “[m]arriage as a family form is not more important or valuable than other forms of family, so the law should not give it more value.”68 She celebrates developments that are designed to advance the interest of non-marital and gay couples by “knock[ing] marriage off its perch.”69 Ultimately, however, she argues that the real problem is not lack of access to marriage, but lack of access to the benefits that the law provides exclusively to marriage.70 She would make legal benefits that are available to married couples available to adult intimate relationships (not merely coupled relations),71 generally.

64 Martha Albertson Fineman, The Meaning of Marriage, in MARRIAGE PROPOSALS: QUESTIONING A LEGAL STATUS 29, 30 (Anita Bernstein, ed., 2006). 65 Id. at 29. She also favorably presents the views of feminists who advocate marital abolition “because “wives are no longer dependent persons,” so the state no longer has its traditional interest in regulating marriage to “mediate relations of dependency between husbands and wives.” “What societal purposes could state intervention and regulation of marriage serve in a no-fault, prenuptial, gender-egalitarian world? Shouldn’t private lives be left to private ordering —to contract?” Id. at 29-30. 66 NANCY D. POLIKOFF, BEYOND (STRAIGHT AND GAY) MARRIAGE (2008). 67 Id. at 3 (emphasis in original). 68 Id. at 3 (emphasis in original). 69 POLIKOFF, supra note __, at 90. 70 POLIKOFF, supra note __, at 102–06. 71 Id. at 4.

30 “[D]istinctions between married couples and everyone else [remain in the law] without assessing the justness of that approach. It’s time we make that assessment.”72 Thus, Professor Polikoff proposes a “valuing-all-families legal system [that] keeps marriage and extends it to same-sex couples although with a new official name—civil partnership.”73 Elsewhere she argues that:

“’[T]he freedom to choose whether and with whom to form close personal relationships is a fundamental value in free and democratic societies.’”74

Professor Linda McLain has argued that, while marriage should continue to be given protection and benefits in the law, that government regulation of families should evolve to promote equality within families and accept a broader array of families (same-sex and other non- traditional relationships).75 Professor Mark Strasser also has suggested that a variety of legal benefits should be provided to a wide range of relationships aside from heterosexual marriage, suggesting that “society as a whole are harmed when particular benefits are tied to marriage.”76

More moderately than some, he predicts: “States could and likely will create alternative structures that will not be the equivalent of marriage and will not have all of the benefits of marriage, but nonetheless will improve the lives of individuals who for whatever reason refuse to

72 POLIKOFF, supra, note __, at 8. 73 Id. at 132. See also Nancy D. Polikoff, Making Marriage Matter Less: The Ali Domestic Partner Principles Are One Step in the Right Direction, 2004 U. CHI. LEGAL F. 353, 366 (2004) (““I support the abolition of marriage as a legal category; its religious or cultural status could continue for those who so choose. I do not believe that marriage is an inherently more valuable relationship than others, including non-conjugal relationships characterized by care and/or interdependence.”); Nancy D. Polikoff, Ending Marriage as We Know It, 32 HOFSTRA L. REV. 201 (2003) (““Rather than dethrone marriage from its favored status, a development that would honor all relationships, [the same-sex marriage movement] seeks privileges for gay and lesbian relationships that mirror heterosexual marriage. This is not optimal family policy.”); Nancy D. Polikoff, Why Lesbians and Gay Men Should Read Martha Fineman, 8 Am. U. J. Gender Soc. Pol’y & L. 167 (1999) (endorsing replacement of marriage as primary domestic institution). 74 Nancy D. Polikoff, Ending Marriage as We Know It, 32 HOFSTRA L. REV. 201, 206 (2003). 75 Linda C. McClain, What Place for Marriage (E)quality in Marriage Promotion? , in MARRIAGE PROPOSALS: QUESTIONING A LEGAL STATUS 106, 107-08 (Anita Bernstein, ed., 2006). 76 Mark Strasser, The Future of Marriage, 21 J. AM. ACAD. MATRIM. LAW. 87 (2008)

31 marry. Such programs might also have salutary effects for children living in such homes.”77

Mary Lyndon Shanley argues for abolition of marriage and adoption of universal civil unions with marriage-like status and benefits, rejecting simple autonomy and contract because: “While I think adult partners should be able to set some of the terms of their relationship through individual agreements, I suggest that the individualism and emphasis on rational bargaining that are at the heart of contracts rest on misleading models of the person, of committed adult relationship, and the proper role of the state.” 78

Professor Richard Epstein asserts from a libertarian perspective that a true libertarian should just want the state to not be involved with marriage. “[W]hy should the state be in the business to sanction marriage of any sort at all? Why not leave that to private groups to determine, under whatever terms and conditions they see fit? If two individuals choose to marry or to cohabit, it is their own business and the state should not provide an edge for one type of institutional arrangements over another, any more than it should privilege partnerships over corporations in commercial life.”79 Another libertarian intellectual, Todd Seavey, has argued that we should “get government out of the marriage business altogether and treat marriage as a purely private contract made between whatever parties wished to form such a contract (and I defended that position in New York Press a decade ago, when it appeared for a time that the new-fangled custom of gay “commitment ceremonies” might be a non-state institution capable of satisfying all factions). . . . [M]arriage law [is] a scheme that arguably shouldn't exist in the first place.”80

77 Mark Strasser, The Future of Marriage, 21 J. AM. ACAD. MATRIM. LAW. 87, 103—05 (2008) 78 Mary Lyndon Shanley, The State of Marriage and the State in Marriage, in MARRIAGE PROPOSALS: QUESTIONING A LEGAL STATUS 188, 207 (Anita Bernstein, ed., 2006) (emphasis in original).. 79 Richard Epstein, Of Same Sex Relationships and Affirmative Action: The Covert Libertarianism of the United States Supreme Court, 12 SUP. CT. ECON. REV. 75, 96—97 (2004). 80 Todd Seavey, Libertarians in Bush’s World, 1 N.Y.U. J. L. & LIBERTY 915, 916—17 (2005).

32 Numerous other law professors and legal activists have written in favor of giving equivalent legal status and benefits to same-sex and other non-marital relationships.81

V. The Limits of Leveling

Claims such as those described in Part IV force us to address two key questions that have been ignored in our society for some time. First, what is it about marriage that justifies it being defined so narrowly and exclusively? Second, why should only conjugal heterosexual marriages be given legal marriage status and certain marital benefits?

These are very good questions. We have taken marriage for granted for a long time, and the treat-all-relationships-as-equal-to-marriage proposal forces us to rediscover what marriage is, why it is so important to society, why it is given such unique, preferred status in law.

Surprisingly, despite the strong, decades-long, growing challenge of same-sex marriage and other non-marital relations, the public discourse in America has yet to seriously grapple with those questions.

81 See generally, Martha M. Ertman, Marriage as a Trade: Bridging the Private/Private Distinction, 36 HARV. C.R.-C.L. L. REV. 79 (2001) (advocating polyamory); Martha M. Ertman, The ALI Principles’ Approach to Domestic Partnership, 8 DUKE J. GENDER L. & POL’Y 107 (2001) (endorsing marriage-equivalent benefits for other adult intimate relationships); Brenda Cossman & Bruce Ryder, What is Marriage-Like Like? The Irrelevance of Conjugality, 18 CAN. J. FAM. L. 269 (2001) (asserting that the conjugal couple should no longer be the focus of family legislation, but that government should instead focus on all relationships ioncluding, not limited to, same-sex, multiple parent, extended family living situations, co-habitation, siblings, friends, roommates, partners, etc.); Anthony Rickey, Loving Couples, Split Interests: Tax Planning in the Fight to Recognize Same-Sex Marriage, 23 Berkeley J. Gender L. & Just. 145 (2008); S.J. Barrett, For the Sake of the Children: A New Approach to Securing Same-Sex Marriage Rights?, 73 BROOK. L. REV. 695 (2008); Dorian Solot & Marshall Miller, Taking Government out of the Marriage Business, in MARRIAGE PROPOSALS: QUESTIONING A LEGAL STATUS 70, 71 (Anita Bernstein, ed., 2006) (arguing that “disconnecting marriage from civil law would be a return to historical norms, and a wise approach to the ethical obligation to define and support families fairly and inclusively.”); Peggy Cooper Davis, Marriage as a “Badge and Incident” of Slavery, in MARRIAGE PROPOSALS: QUESTIONING A LEGAL STATUS 171, 185 (Anita Bernstein, ed., 2006) (arguing that denying other relationships the legal status and benefits of marriage is a badge of slavery); Judith Stacey, Toward Equal Regard for Marriages and Other Imperfect Intimate Affiliations, 32 HOFSTRA L. REV. 331 (2003).

33 Legal scholars, students, and policy-makers in particular need to address these questions because whether non-marital intimate relations should be given legal treatment equivalent or largely equivalent to marriage ultimately turns on whether heterosexual conjugal marriage makes a unique contribution to society, advancing the social purposes for which the state has established the preferred legal institution of marriage, or whether non-marital intimate relations make the same or equivalent contributions towards the achievement of the social purposes of marriage.

To answer this question requires that we do two things: (1) identify the social interests that constitute the public purposes of legal marriage, and (2) compare the contributions that heterosexual conjugal marriages make toward those social interests with the contributions that non-marital intimate relations make toward those or similar social interests. The comparison requires that we compile lists of both positive and negative qualities and characteristics—a list of the benefits and contributions provided to society by the particular form of relationship and a list of the harms and problems associated generally with the form of relationship on the negative side of the ledger. Then we must balance the ledger, so to speak. This task is difficult and makes some people uncomfortable for two reasons.

First, some of the qualitative benefits of marriage are hard to measure. Not all of the value of marriage can be reduced to quantifiable figures and statistics. There are some dimensions of the human experience, including human emotional relationships, that may not yet be adequately understood or quantified by existing social science. So it is not an easy task.

Second, making comparisons about personal lifestyles makes many of us feel awkward.

Many people d not like to make comparisons of such intimate and personal things.82 Even if they

82 Indeed, a major contribution of contemporary feminism and several other perspectives (such as the Therapeutic Jurisprudence movement) emphasizes this reality by valuing emotion qua emotion, and in trying to protect good relationships qua relationships.

34 think that one kind of relationship is bad, and another is good, they believe that modesty or privacy preclude them from saying that publicly. It just seems judgmental to some to compare.

Others believe that such things are completely relative or subjective, that whatever kind of relationship a person thinks is best is the best for that person. They believe there is not any real, objective, best kind of relationship for society. Some people oppose making comparisons so much that they get very upset, and start calling people who undertake the task names, like

“judgmental” or “bigoted” or ”homophobic” or ”narrow-minded.” And that hostility generates and supports the taboo against asking such comparative questions or doing such comparative research (unless it is designed to show that conjugal marriage really is not superior to non- marital relationships including same-sex relationships).

Whether non-marital intimate relations really do contribute as much to society and social needs as conjugal heterosexual marriage is one of the key issues raised by advocates of the abolition of leveling of marriage. This question deserves to be taken seriously and given a serious answer.

A. Marital Status

What is marriage, and why is it defined so narrowly as to include only the monogamous union of an adult, consenting, unmarried, competent man and woman?83 Marriage is a term used in many different contexts with many possible meanings. It may mean different things in law than in religion, or sociology, or psychology, or within particular families, etc. The questions

83 These six qualities are both historically prevalent and widely accepted in the modern world. A survey in 1996 of marriage laws in sixteen nations around the world identified these six qualities as the common requirements of marriage globally. Lynn D. Wardle, International Marriage and Divorce Regulation and Recognition: A Survey, 29 FAMILY LAW Q. 497 (1995). At that time, a few dozen Muslim nations allowed polygamous marriage, and since then, five nations (less than three percent of all sovereign nations) and a handful of dependent or subordinate jurisdictions (municipalities, provinces, states, etc.) have legalized same-sex marriage. But the overwhelming globally prevailing pattern continues to define marriage in terms of these six requirements.

35 raised by advocates of same-sex marriage, universal civil unions, or equal legal treatment of all adult intimate relations with marriage concern the public institution of legal marriage.

At one level, it can be said that legal marriage is whatever lawmakers say it is. That answer tells us very little about marriage, but tells us something important about law. The lawmakers in any legal system (in a democracy, the people or their elected representatives acting according to established legal procedures) may define marriage however they choose. If they chose to confer the legal status of marriage only on relations between one adult male and one adult female, it is so. On the other hand, if they chose, they could provide that two men, or two women, or three persons of any gender may marry, or could allow father-daughter relations, or brother-sister relations—and for purposes of law in that jurisdiction, that is what legal marriage would be. This reductionist answer, however, does not help us know much about marriage, only about who decides what marriage is.

Substantively, in law, marriage refers to two things. First, it refers to a specific, unique legal institution that has been and is recognized and given special treatment in the law of domestic relations and which is defined and regulated by the state. It is a special kind of family relationship, namely the relationship of husband and wife. This can be called marriage status, and the area of law that regulates it is called marriage law, or (more generally) family law. This can be distinguished from what can be called marriage benefits, which is a set of legal rights and privileges for which marriage provides eligibility or qualification to enjoy (discussed infra at __).

What is it about the special committed relationship between a man and a woman that has led lawmakers throughout all time, and across all cultures, to confer upon this relationship the special, preferred legal status of marriage? Why has the state chosen to make conjugal marriage between a man and a woman (and no other kind of intimate relationship) a unique public

36 institution, and given special legal benefits to the institution and its spouses? The answer to these and similar questions is that conjugal heterosexual marriages have been given special legal preference because they make uniquely valuable contributions to the state, to society, and to individuals. Heterosexual marriages have been singled out from all kinds of adult relationships for preferred status because they are so distinctively important and uniquely valuable to society and to the stability and continuity of the state, and to achieving the purposes for which the state exists. Legal marriage (as distinct from marriage as a religious or social or familial institution) is a public institution established to achieve public purposes. It is not the private consequences but the public consequences of heterosexual conjugal marriage that are relevant to the public policy issue of whether a particular relationship should be given the public status of marriage.

Advocates of extending truly marital benefits to non-marital intimate relations, including same-sex couples, assert their challenge: Prove that conjugal relations are unique and uniquely beneficial to society. But they have the burden of proof backward. The burden of proof is upon those who propose a radical redefinition, or “leveling,” of marriage to show that their proposal will not harm the social institution of marriage or otherwise harm society, especially families and children.

The fundamental purposes of marriage have been described in Part III, supra. Marriage certainly is not a fail-safe guarantee of success in family life. (In this day of high divorce rates, does that surprise anyone?) So family structure (e.g., marriage) may be a shorthand way of referring to family interaction factors and dynamics such as conflict, control, communication, caring and trust, identity, support, etc., which other research has shown to correlate with delinquency.84 But that is the whole point of marriage as a dividing line or classification—

84 Stephen A. Cernkovich & Peggy Giordano, Family Relationships and Delinquency, 25 Criminology 295 (1987) available at http://www.blackwell-synergy.com/doi/pdf/10.1111/j.1745- 9125.1987.tb00799.x (last viewed 5 July 2007).

37 research shows consistently that intact conjugal marriage is a statistically reliable “short-hand” for positive characteristics and the generation of positive social benefits and the minimization of negative social qualities and pathologies.85 Numerous studies have shown a clear link between family form or structure and juvenile delinquency, and some family paradigms are more closely linked with juvenile delinquency than others.86 Marriage provides a much better environment for the successful development and raising of children and for fostering successful, healthy adult intimate relationships than the various forms of non-marital cohabitation (including same-sex coupling).87

There also is strong evidence the evidence that form matters in adult intimate relations for adults, as well. Heterosexual cohabitation is significantly less beneficial for adults, children, and society than conjugal marriage. Researchers and cohabiters both agree that cohabitation is distinguished and distinguishable from marriage in many significant aspects.88 National survey results show that cohabitors in general report poorer relationship quality than their married

85 See Lynn D. Wardle, Form and Substance in Parentage Law, 15 WILLIAM & MARY BILL OF RIGHTS J., 203 (2006); Lynn D. Wardle, All You Need Is Love? 14 SO. CAL. REV. L. & WOMEN’S Studs. 51 (2004). 86 See, e.g., Rolf Loeber & Magda Stouthamer-Loeber, Family Factors as Correlates and Predictors of Juvenile Conduct Problems and Delinquency, University of Chicago (1986), available at http://www.jstor.org/view/01923234/ap040007/04a00030/0 (last seen July 5, 2007). See also Crystal L. Murry, Jimmy Williams, and Randall T. Salekin, Juvenile Delinquency and Family Structure (2004) available at http://www.ctl.ua.edu/msp/Journal/Spring2006/Journal/Crystal%20Murry.pdf (last viewed July 5, 2007) (summarizing juvenile court records from Alabama in 1996 that confirm that fewer juvenile delinquents reside in two-parent homes, but fail to show correlation between serious juvenile crimes or recidivism and not living in a two-parent home.). 87 Marsha Garrison, Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligation, 52 UCLA L. REV. 815 (2005). 88 Wendy D. Manning; Pamela J. Smock, Measuring and Modeling Cohabitation: New Perspectives From Qualitative Data, 67 JOURNAL OF MARRIAGE AND FAMILY 4, 989-1002 (November 2005); Judith A. Seltzer, Cohabitation in the United States and Britain: Demography, Kinship, and the Future, 66 JOURNAL OF MARRIAGE AND FAMILY 921-928 (November 2004); DAVID POPENOE & BARABARA DAFOE WHITEHEAD, SHOULD WE LIVE TOGETHER? WHAT YOUNG ADULTS NEED TO KNOW ABOUT COHABITATION BEFORE MARRIAGE: A COMPREHENSIVE REVIEW OF RECENT RESEARCH, at passim (1999).

38 counterparts.89 Cohabitation fosters attitudes about commitment and relationships that foster instability and break-up.90 Symptoms of depression are higher among some persons in cohabitation relationships (especially men) than among married persons.91 Domestic violence is notably higher in cohabitation relationships than in marriages.92 Most cohabitation is short-lived; only ten percent (10%) last five years or longer.93 Children being raised in a cohabitation relationship are at severe disadvantages in numerous dimensions of their lives, from potential for abuse to molestation to poverty to exposure to drugs, to school under-performance. As a pair of researchers recently documented,

We find that youth in “intact” families differ in important ways depending on whether the two biological parents are married or cohabiting and on whether they have children from a previous relationship. In addition, we find that youth who reside with a single biological parent who cohabits with a nonbiological partner exhibit an unusually high rate of antisocial behavior, especially if the custodial parent is the biological father.94

Thus, the overwhelming evidence is that the welfare of adults as well as of children is enhanced and advantaged in conjugal marriage as compared to non-marital relationships in general. The claim in Beyond that all relationships are essentially equal in quality and qualities is factually untenable in the twenty-first century.

89 Bruce Wydick, Grandma was Right: Why Cohabitation Undermines Relational Satisfaction, But Is Increasing Anyway, 60 Kyklos 4, 617, 617-645 (Nov 2007); Susan Brown & Alan Booth, Cohabitation Versus Marriage: A Comparison of Relationship Quality, 58 J. MARRIAGE & FAM. 668 (1996). 90 Steven L. Nock, A Comparison of Marriages and Cohabiting Relationships, 16 J. FAM. ISSUES 53 (1995). 91 Galena H. Roades, A Longitudinal Study of Cohabiting Couples’ Reasons for Cohabitation, Relationship Quality, and Psychological Well-Being, 68 Dissertation Abstracts International: Section B: The Sciences and Engineering 8-B, 5637 (2008). 92 Popenoe & Dafoe, supra note 127, at 3–7. 93 Seltzer, supra note __, at 923-24. 94 Robert Apel and Catherine Kaukinen, On the Relationship Between Family Structure and Antisocial Behavior: Parental Cohabitation and Blended Households, 46 CRIMINOLOGY 1, 35–70 (Feb 2008).

39 Thus, as a matter of rational public policy it makes sense for the law to channel (but not force) willing couples into the optimal form of relationships (marriage) to prevent harm to children, adult individuals, families, society, and the institution of marriage. The law and courts utilize marriage as a shorthand substitute for substance. The form is presumed to raise a presumption of substance usually rebuttable only upon proof that a party has fallen below the minimum-tolerable level of parenting.

Focusing primarily on marriage as a dividing line for benefits preserves and reinforces marriage as an institution. There are no formless institutions; the forms of institutions are part of their presence and identity. To level all forms of adult intimate relationships (by making them equal in the law, by piercing the form and focusing on substance instead) would destroy marriage as an institution, and with it destroy its positive institutional influence. By making the form of marriage invisible, the institution of marriage also becomes invisible. As institutions such as marriage wither and deteriorate, the social influence they exerted on members of society

(especially on children, on adolescents, on adults in times of turmoil) also weakens and wanes.

As the informal, non-legal influence of social institutions weakens, the need for government to exert its influence increases. Thus, as the law moves from making the form of marriage primarily determinative of legal benefits and to focusing on internal substance, or levels all relationships of intimacy, it undermines the ability of the institution of marriage to perform valuable social channeling and regulating functions through informal means, and increases the need for the state to exert its power over individuals and families through more coercive and - may we say formal means.95

Moreover, marriage as a form or dividing line does not merely represent, substitute for,

95These thoughts were stimulated by the very insightful analysis of Jennifer Roback Morse, Marriage and the Limits of Contract, 130 POLICY REVIEW (April 13, 2005) available at http://www.policyreview.org/apr05/morse.html (last seen July 5, 2006)

40 and raise a presumption of the substance of good relations and good parenting and responsibility.

Conjugal marriage actually engenders, generates, reinforces, nurtures, supports, cultivates and enhances the very substance of good relations, good parenting and responsibility. The substance of these socially desirable qualities thrives in some forms (such as in marriage and marital parenting) and struggles in many others (including cohabitation, same-sex unions, polygamous relations, etc.). Thus, the form of marriage is substance not only because it is demonstrably associated with good substance, but because to some extent it actually helps to create, foster, engender, and increase the socially beneficial substances that public policy wants to promote.

B. Marriage Benefits

Marriage is not just a public status relationship but it also is a legal classification term, used in literally hundreds of other laws, judicial doctrines, and government programs as the basis for extending or denying rights, privileges, duties, and obligations. These are often called marriage benefits (even though they often are or include legal burdens, duties and obligations, not benefits), and they exist in almost all areas of the law.96 When used to define or regulate marriage benefits, the term “marriage” (or ”husband,” ”wife,” ”spouse,” ”married persons,” etc.) usually includes all persons who have marriage status, and it also may include some other persons who do not have legal marital status, but to whom lawmakers wanted to extend the particular marriage benefit.

96For example, marriage is a term of classification of benefits in torts (interspousal immunity), evidence (interspouse testimonial privileges), contracts (capacity to contract and limitations on interspousal contracts), welfare law (eligibility for public assistance), insurance law (who is entitled to certain benefits), immigration law (who is entitled to certain preferred status for immigration visas), criminal law (certain crimes and defenses are defined in terms of marital relations), constitutional law (certain fundamental rights are defined in terms of marriage), employment law (nepotism rules), wills and estates (dower, curtesy, spousal shares), tax law (exemptions and deductions), pension law (nonemployees entitled to pension benefits), and most other areas of law.

41 Marriage benefits are of two types. Some legal benefits are extended to marriages and spouses because the legal benefits directly relate to the status of marriage and the unique relationship of husband and wife or the unique qualities of marital relationships and of the special contributions marriages make to (or unique burdens they impose on) society. I will call these marriage status benefits. In most cases it would be unjustified, and possibly counterproductive, to extend those status benefits to nonmarital relations which do not make the same contributions to society or which do not function the same for the advantage or burden of society regarding the state interest associated with the benefit.

For instance, one of the oldest presumptions in law is the presumption that a husband is father of a child born to his wife. (This presumption is the reason you married men have not had to submit to DNA blood tests to establish that you really are the father of each of the children your wife has delivered, and this presumption is the reason that you married women have not had to resort to DNA blood testing to establish that your husband has the legal obligation to support the children born during your marriage.) The law can rely on this presumption because of two factors that, combined, distinguish marriages from other relations: procreative intercourse and a comparatively high degree of sexual fidelity.97 For example, the latter factor distinguishes marriages from nonmarital cohabitation including same-sex unions. The presumption of actual biological paternity simply could not be applied to unmarried cohabiting couples with as much credibility as it can be applied to married couples. Generally, an unmarried woman must resort to blood testing to ascertain reliably that a particular man really is the biological father of her child and should be obligated to pay child support. Likewise, the first factor distinguishes marriages from same-sex partnerships because same-sex couples cannot engage (together) in procreative

97 See Wardle, Morality of Marriage, supra note __, at 220-225.

42 sexual relations. Thus, application of the marriage partner presumption to a same-sex partnership would not produce a reliable indication of who the biological father of the child is.

The more closely a benefit is linked with marital status, the more narrowly the scope of beneficiaries is defined. Essential marriage status benefits or incidents generally relate to the rights of marital cohabitation and consortium, the reciprocal financial relations of spouses

(mutual support and acquisition of some interest in the property acquired by the other), and the co-equal rights of parenthood regarding the children of the marriage.

The other category of marriage benefits is benefits in which marriage or marital relationship is simply used as a convenient administrative category, not because the particular benefit is designed to protect or support families or because marriage is specially linked to the particular benefit. I call these marriage benefits marriage convenience benefits. These benefits reasonably might be extended to persons in other relationships by substituting functional criteria for the marriage benefit definition or qualification. The hospital screening rule for visiting patients in intensive care is one good example. These benefits might be extended to some nonmarital relationships without detracting from the institution of marriage or diluting the purpose of the classification. Wrongful death benefits and worker’s compensation benefits are two other examples. The law could just as well (perhaps better) carefully classify or define eligibility for the benefit using some other criterion than the convenient catch-all of marriage.

Distinguishing marital status benefits from marital convenience benefits, however, may not be a short or simple task. Marriage is used as a legal basis for extension of benefits, burdens, privileges, and obligations in literally thousands of statutory programs in both state and federal law. For example, in 2004 the General Accounting Office reported that 1,138 federal statutes use

43 one or more of the above-indicated marital status terms.98 (That count did not include the use of those terms in the Code of Federal Regulations and other federal administrative rules and regulations, which would significantly multiply the number of instances of marital status terms.)

Similarly, in each state terms like marriage, and spouse are used in hundreds of state laws

(Hawaii counted over 300 laws; Washington state over 400; a national lesbian organization says

500 in the average state) covering everything from contracts to torts, wills to medical treatment, property to taxes, andparenting to alimony.99 So the number of benefits linked to marriage is huge. Moreover, the task of classification of benefits as truly marital or merely a marriage classification of convenience is complicated by the fact that some marriage benefits overlap both categories. Separating these benefits is a task that must be undertaken by persons seeking to have marriage benefits extended to nonmarital relationships, because marriage status benefits

(designed to support a unique facet of marriage or recognize a unique contribution made to society uniquely by marriage relations) are unique to marriage and should not be extended to

98 Defense of Marriage Act: Update to Prior Report, GAO report GAO-04-353R in response to inquiry from Senator Bill Frist, http://www.gao.gov/new.items/d04353r.pdf, Jan. 23, 2004. See also Joshua K. Baker, 1000 Benefits of Marrriage? An Analysis of the 1997 GAO Report, iMAPP Public Policy Brief, May 26, 2004, at 1, available at http://www.marriagedebate.com/pdf/iMAPP.GAO.pdf (Seen September 13, 2006) (citing GAO/OGC-97-16 (Jan. 31, 1997), Letter from GAO Associate General Counsel Barry Bedrick to the Hon. Henry Hyde, dated January 31, 1997, and GAO-04-353R, Defense of Marriage Act (January 23, 2004), letter from GAO Associate General Counsel Dayna K. Shah to the Hon. Bill Frist, dated Jan. 23, 2004. 99 See The Report of the Commission on Sexual Orientation and the Law in Hawaii (Dec. 8, 1995) (the terms marriage, husband, wife, spouse, and family are used extensively in a wide variety of statutes and programs in state law in Hawaii); id. at 105–126, App. B (listing over 300 Hawaiian statutory provisions containing references to marriage, husband, wife, spouse, and similar familial terms); Legal Marriage Alliance of Washington [State] RCW Project 2004, available at http://lmaw.org/rcw_project.htm (reporting 423 state statutes which confer benefits or obligations based on marital status); see generally Karen M. Doering, 1,500 Reasons Why We Need Marriage Equality, National Center for Lesbian Rights, January 2004 (available at http://www.nclrights.org/publications/1500reasons-0304.htm) (asserting that each state “provides approximately 500” rights, privileges, or obligations to married spouses).

44 nonmarital relations, while marriage convenience benefits might reasonably be extended to some nonmarital relationships.

Thus, legal marriage includes marital status, marriage status benefits, and marriage classification benefits. The status of marriage itself is a highly preferred, very positive, very desirable status and that status itself is the main benefit that some same-sex marriage advocates seek. They seek the dignity, the social preference, the social endorsement that the status of legal marriage entails. The core of marital status is controlled by laws regulating the definition and creation of marriage. They want to revise laws defining marriage and regulating the creation of marriage to include same-sex relations. Other same-sex marriage advocates primarily seek the marital status benefits that are often linked with valuable economic rights. Others simply want marriage classification benefits, not wishing to equate same-sex relations with marital relations for purposes of status or unique marital status benefits. Professor Polikoff wants equal marital benefits (perhaps equal status but clearly equal benefits, including presumably both marital status benefits and marriage convenience benefits) for all non-marital couples, not just same-sex couples. It must be admitted that many relationships that are not marriages make some contributions that are valuable for particular social purposes. (Even relationships that are believed to be harmful to society and to individuals in some ways may be positive in other ways.) In some circumstances it may be reasonable for the law to recognize those positive contributions and extend certain legal benefits to such nonmarital relations if it can do so without undermining the institution of marriage, if the benefits outweigh the harms, and if doing so will not give official encouragement to the gullible to enter into high-risk relationships. For example, when someone is sick in intensive care in a public hospital, some hospitals limit visitors to spouses and immediate family. If the patient is unmarried but has a roommate he has been living

45 with for some time, even though they are not married and not biological family, that person may be as important a source of personal support during hospitalization and recovery as a spouse or family member might be. So it would seem to be reasonable to support a law or policy protecting the right of long-term live-in companions to visitation in hospitals whether the companionship is same-sex or heterosexual, married or nonmarital. There are other similar benefits which are related to policies not unique to marriage which also logically could be extended to non-marital couples to make the law more inclusive in achieving its purposes, without any harm to marriage.

However, true marital status benefits should not be extended to nonmarital relations that simply claim to be the functional equivalents of marriages. Nor should marital status itself be extended to such relationships.

Substitution of functional criteria such as “dependence” for marriage in eligibility for legal benefits is inadequate. Mere dependence is too facile a test because dependence may be recent or temporary in its commitment. It is long-term, committed dependence or interdependence that matters—not temporary, or short term dependence.

Some opponents of extending any marital benefits, even marriage convenience benefits, to non-marital couples are opposed because it might be the first step on a slippery slope to equalizing all non-marital relationships with marriage, which would functionally destroy the legal institution of marriage. The slippery slope argument is a serious concern for those who are willing to consider the extension of some customized and specifically tailored rights or selected appropriate benefits for alternative relationships. The concern is that offering a package of benefits that meet the needs and qualities of a specific relationship in year one will simply open the door and increase the pressure for the extension of all of the rights and benefits of marriage in year two or in year three. For persons who are interested in the law conveying an accurate

46 message and not false advertising or engaging in the “consumer fraud” of portraying as equivalent to marriage nonmarital relationships that are quite different, more risky, and less healthy in significant respects, this “slippery slope” concern is a very serious matter.

But the short answer to the slippery slope argument is that changes in the law such as extending some marriage convenience benefits to non-marital couples has no momentum of its own. The public forces that set the thing in motion must keep pushing for the downhill slide to proceed. In our democratic system, the same forces that cause a modest change in law to be adopted can also prevent the adoption of a more radical change in the future, if they are not disinterested.

Thus, the marriage dividing line between benefits enjoyed by married persons and persons in non-marital relationships need not to be rigidly applied to marriage convenience benefits. The form of marriage ought not to always make an irrebutable presumption when it comes to marriage convenience benefits, but should in many instances create only a rebuttable presumption as to qualification for many legal benefits, privileges, and responsibilities. A rebuttable presumption for marriage convenience benefits is necessary because of the over-use of marriage as a classification, extending it beyond the need to protect marriage and using it as a matter of mere administrative convenience.100

VI. The Limits of Equality

100 I opposed the proposed interpretation of Utah’s Amendment 3 prohibiting same-sex marriage or giving the “same or substantially equivalent” legal benefits to other relations, described by Professor Polikoff. Polikoff, supra note __, at 152-156. I have said that Amendment 3 only applies to giving substantially equivalent benefit schemes or relationships, not to extension of particular benefits to same-sex couples and to alternative families. In 2008 I took a lot of heat from conservatives with whom I have stood side-by-side on the ramparts in many other cultural wars’ battles who wanted to overturn the Salt Lake City ordinance. The Salt Lake City ordinance may have been unnecessary or ill-advised, but it would be even worse policy for the legislature to strip the municipalities of the ability to make such policy decisions.

47 Karl Llewellyn explained that underlying our conception of justice are two competing principles, and those principles create and are in constant tension in our legal system.

One is a principle of equality (or universality) that “demands . . . that like men be treated alike in like conditions.”101 The other is a principle of difference (or individuality) that ensures that persons in different conditions will be treated differently, or, as Professor Llewellyn described it, creates “the need of shaping decisions to individual cases . . . .” 102 Because these principles are not separated but connected, joined like Siamese twins, the Anglo-American doctrine of precedent and our system of legal reasoning are “Janus-faced,” as Llewellyn put it.103 These competing principles, the principle of universality based on similarities and the principle of distinctiveness, based on differences, are two sides of the same coin, the coin of justice. Thus, equality requires recognition of differences, and without differences there is mere sameness, not equality.

This has been understood since at least the time of Aristotle who taught: “Equality in morals means this: things that are alinke should be treated alike, while things that are unalike should be treated unalike in proportion to the unalikeness.”104 In other words, one dimension of equality requires recognizing differences and treating relationships that are significantly unalike differently. By the same token, it would violate the principle of equality to require that relationships that are significantly different the same (as marriage, for example).

In legal doctrine, this is well established in the constitutional doctrine of Equal Protection in American jurisprudence. ‘The Constitution [of the United States] does not require things

101 Karl Llewellyn, The Bramble Bush 43 (1960). 102 Id.. 103 Id. at 68-69. 104 Aristotle, Nicomadean Ethics, V.3.1131a-1131b (W. Ross transl. 1925). See generally Doyle, supra note __, at 149.

48 which are different in fact to be treated in law as though they were the same.’”105 Equal protection doctrine “embodies a general rule that States must treat like cases alike but may treat unlike cases accordingly.”106 The Supreme Court has long recognized that “[di]fferences in circumstances beget appropriate differences in law. The Equal Protection Clause was not designed to compel uniformity in the face of difference.” 107 Thus, “equal protection does not require that ‘things which are different in fact . . . be treated in law as though they were the same.’”108 Accordingly, “discrimination with respect to things that are different” does not violate the Equal Protection clause.109 Application of this equality principle should (and usually does) justify the universal marriage qualifications that limit legal marriage to conjugal couples.110

**

VII. Conclusion: Purposeful Preference for Conjugal Marriage

Marriage matters because marriage is the foundation of strong and healthy families and families are the infrastructure of society. Marriage is not just another source of social bonding and generation of civic virtue like many other social institutions (such as schools, employers, law, churches, private associations, etc.). Rather, as the Supreme Court noted, marriage “giv[es] character to our whole civil polity.”111 Marriage “is the foundation of the family and of society,

105 Rinaldi v. Yeager, 384 U.S. 305, 308–309 (1966) (citations omitted). 106 Vacco v. Quill, 521 U.S. 793, 799 (1997) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). 107 Whitney v. State Tax Comm’n of N.Y., 309 U.S. 530, 542 (1940). 108 Carey v. Brown, 447 U.S. 445, 481–82 (1980) (Rehnquist, J. dissenting) (quoting Tigner v. Texas, 310 U.S. 141, 147 (1940)). 109 Puget Sound Power & Light Co. v. Seattle, Wash., 291 U.S. 619, 624 (1934). 110 See Dale M. Schowengerdt, Defending Marriage: A Litigation Strategy to Oppose Same-Sex “Marriage,” 14 REGENT U. L. REV. 487 (2002) (reviewing court decisions that have ruled that prohibiting same-sex marriage does not violate Equal Protection); Lynn D. Wardle & Lincoln C. Oliphant, In Praise of Loving: Reflections on the “Loving Analogy” for Same-Sex Marriage , 51 HOWARD L.J. 117, 139 (2007) (analyzing Loving analogy to racial antimiscegenation laws). 111 Maynard, 125 U.S. at 213.

49 without which there would be neither civilization nor progress.”112

~*113

The jurisprudence of conjugal marriage is the first line of defense for basic human rights.

It is the foundation for equality in individual human rights. It is the bastion of recognition of responsible sex and gender differences in the law. The jurisprudence of marriage recognizes the uniqueness and unique importance of the institution of marriage for society and for the values upon which our legal system are built.

Conjugality in marriage may seem anachronistic, boring and prosaic. But “[t]he prosaic marriage is one that fits . . . real, day-to-day lives.”114

-END-

112 Id. at 211 (emphasis added). Thus, marriage “is an institution, in the maintenance of which in its purity the public is deeply interested . . . .” Id. 113 Add from Bruce C. Hafen, Protect Human Rights 114 The Prosaic Marriage, Seeing the Everyday, Issue Four, (February 2009).

50 Appendix I

Legal Status of Same-Sex Domestic Relationships Allowed in the United States and in Other Nations 1 January 2009

US:

Same-Sex Marriage Legal: Two (2) USA States (MA, CN)

Same-Sex Unions Equivalent to Marriage Legal in Six (6) US States (CA,* CN, NH. NJ, OR, VT).

Same-Sex Unions Registry & Some Benefits in Four (4) US Jurisdictions (HI, ME, WA, & DC)

OTHER NATIONS:

Same-Sex Marriage Legal in Six Nations The Netherlands, Belgium, Canada, Spain, South Africa,** and Norway (2009)

Same-Sex Unions Equivalent to Marriage Legal in Fourteen Nations Denmark, Norway, Sweden, Iceland, Finland, France, Germany, Luxembourg, Slovenia, South Africa**, Andorra, Switzerland, UK; New Zealand; and Australia

Same-Sex Unions Registry & Some Benefits in at least Nine Nations Argentina, Austria, Columbia, Croatia, Czech Republic, Hungary~, Israel, Portugal, and Uruguay

* = Status of “Domestic Partnerships” in CA after In re Marriage Cases is presumably is valid but not clear decision.

** = South Africa Civil Union law is ambiguous so it is double-counted.

~ Recent court decision invalidated part of the law.

51 Appendix II

Legal Status of Same-Sex Domestic Relationships Prohibited in the United States and in Other Nations 1 January 2009

US:

Same-Sex Marriage Prohibited by law or appellate court decision in Forty-Eight States (All but MA & NM)

Same-Sex Marriage Prohibited by State Constitution Amendment: Thirty (30) USA States (AK, AL, AR, AZ, CA, CO, FL, GA, HI, ID, KY, KS, LA MI, MS, MO, MN, NB, NV, ND, OH, OK, OR, SC, SD, TN, TX, UT, VI, & WI)

Same-Sex Civil Unions Equivalent to Marriage Prohibited by State Constitution Amendment in Nineteen (19) USA States (AL, AR, FL, GA, ID, KS, KY, LA, MI, NB, ND, OH, OK, SC, SD, TX, UT, VI, WI)

OTHER NATIONS:

Thirty-seven (37) of 191 Sovereign Nations (19%) Have Constitutional Provisions Explicitly or Implicitly Defining Marriage As Union of Man and Woman Armenia (art. 32), Azerbaijan (art. 34), Belarus (art. 32), Brazil (art. 226), Bulgaria (art. 46), Burkina Faso (art. 23), Cambodia (art. 45), Cameroon (art. 16), China (art. 49), Columbia (art. 42), Cuba (art. 43), Ecuador (art. 33), Eritrea (art. 22), Ethiopia (art. 34), Gambia (art. 27), Honduras (art. 112), Japan (art. 24), Latvia (art. 110 - Dec. 2005), Lithuania (art. 31), Malawi (art. 22), Moldova (art. 48), Montenegro (art. 71), Namibia (art. 14), Namibia (art. 14), Nicaragua (art. 72), Paraguay (arts. 49, 51, 52), Peru (art. 5), Poland (art. 18), Serbia (art. 62), Somalia (art. 2.7), Suriname (art. 35), Swaziland Constitution (art. 27), Tajiksistan (art. 33), Turkmenistan (art. 25), Uganda (art. 31), Ukraine (ark. 51), Venezuela (art. 77), Vietnam (art. 64). See also Mongolia (art. 16), Hong Kong Bill of Rights of 1991 (art. 19). Examples: Article 110 of the Constitution of Latvia now reads: AThe State shall protect and support marriage B a union between a man and a woman, . . .@ Article 46 of the Constitution of Bulgaria provides: A(1) Matrimony is a free union between a man and a woman. . . .@

Eighty-five (85) Nations have substantive constitutional provisions protecting “marriage”

One hundred fifty-one (151) Nations have constitutional provisions protecting “family”

One hundred eighty-six (186) Nations Do Not Allow Same-sex Marriage

One hundred seventy-two (172) Nations Do Not Allow Same-sex Marriage-Like Unions

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