Transcript YEAR - J. Reuben Clark Law School

What’s the Harm?
Changes and Challenges in Family Law
by Lynn D. Wardle
Bruce C. Hafen Professor of Law
J. Reuben Clark Law School, Brigham Young University
Presented at BYU Education Week, August 18, 2009
Administraton
Thanks: BYU Education Week, Brother Carlile, Brother Payne
Introduce Teacher (Law Prof 31 yrs; Past Pres ISFL; ALI; AUL;
NRLC; 10 books + >100 law review articles/ book chapters;
lectures/presentations in >22 nations; > 25 US law schools)
Introduce Class (CA, other states where SSM issues)
Resources: No handouts (BYU Ed Week policy) so take notes!
1) Marriage & Family Law Research Project website
http://www.law2.byu.edu/organizations/marriage_family/index.php
(symposia, presentations, draft papers, slides, links)
2) “What’s the Harm?” Does legalizing same-sex marriage really
harm individuals, families or society?” (Univ. Press Am. 2008) Y
Lest We Take Ourselves Too
Seriously
Slogan on a T-Shirt :
“Marriage is a great institution – but who
wants to spend their life in an institution?”
Audience Survey:
• How many believe that SSM should be legalized?
Y____ No_____ U/N/A______
• How many believe that marr-equiv SSCU should be legalized?
Y____ No_____ U/N/A______
• How many believe that state constitutions should be amended
to prohibit SSM?
Y__ N__ U/N/A__
• How many believe that adoptions by SS couples/partners
should be legally permitted?
Y__ N__ U/N/A__
Outline of Four Lectures
DAY 1 (TUES): The Best of Times, the Worst of Times
• External vs Internal Threats to the Family
• Developments in the US and world re: SSM, SSCU, LGAd
DAY 2 (WED): What’s the Harm? Does legalizing same-sex marriage and
gay parenting really harm individuals, families or society?
• How these developments threaten individuals, and families and society
• Exporting and importing same-sex marriage,civil unions, LGAds
DAY 3 (THURS): Marriage, Virtue, and the Foundation of American
Constitutional Government
• The Founders, Republican Virtue and the political importance of Marriage
& Family
• Why Virtue and Marriage Still Matter Today
• DAY 4 (FRI): The Future for Families: Effective Influence
• Three main Issues in next 12-15 months
• Working Effectively to Make the World Better for Families
Lecture 1:
The Best of Times, the Worst of Times:
Recent Developments in Families and
Family Law
“It was the best of times it was the worst of times, it
was the age of wisdom it was the age of
foolishness, it was the epoch of belief it was the
epoch of incredulity, it was the season of light it was
the season of darkness, it was the spring of hope it
was the winter of despair, we had everything before
us we had nothing before us . . . .”
Charles Dickens,
A Tale of Two Cities (1859).]
Lecture 1:
The Best of Times, the Worst of Times
Outline
A. Contrast between External & Internal; Improvement vs. Disintegration
B. The Worst of Times re: Redefining Family
1. Developments in the US, pro-same-sex marriage and civil unions
2. Developments in the US, pro-gay adoption & children (CBOW)
3. Developments globally, pro-SSM
4. Developments globally pro-gay adoptions & children (CBOW)
C. The Best of Times re: Redefining Conjugal Family
1. Developments in the US, protecting marriage
2. Developments in the US, protecting adoption & children
3. Developments globally, protecting marriage (37 nations)
4. Developments globally protecting marital adoptions (EU polls)
5. 2009 changes: moving to expensive pews but not crossing the aisle
D. Challenges and Opportunities for Individuals, Families and Society
E. Goals: Information, Analysis, Teach/Exemplify Speaking Knowledgeably,
Respectfully & Forthrightly.
A. Contrast between External & Internal;
Improvement vs. Disintegration
20th Century: Dramatic Improvements in External Conditions for Families
Health & life-expectancy
Education & literacy
Employment
Income & wealth
Living & working conditions
Political freedom.
Dramatic deterioration in Internal Conditions for Families
CBOW & Abortion
Cohabitation
Divorce
Parental Child-rearing
SSM and LGAd
Marriages in the USA, 1960-2005
Year
Number
Rate
% Adult Pop. m’d
1950
1,667,000
11.1
67.0
1955
1,531,000
9.3
68.4
1960
1,523,000
8.5
67.3
1965
1,800,000
9.3
73.2
1970
2,159,000
10.6
71.7
1975
2,153,000
10.0
69.6
1980
2,390,000
10.6
65.5
1985
2,413,000
10.1
63.0
1990
2,448,000
9.8
61.9
1995
1,954,000
7.6
60.9
2000
2,329,000
8.5
59.5
2005
2,249,000
7.6
59.0
DIVORCE INCIDENCE AND RATES IN THE
UNITED STATES, 1920-2005
Year
Number of Divorces
1920
% of Adult7
Population Divorced
171,000
Divorce Rate per 1000
population
1.6
Divorce Rate per 1000
Married Women
8.0
1930
196,000
1.6
7.5
1940
264,000
2.0
8.8
(1946)
(610,000)
(4.3)
(17.9)
1950
385,000
2.6
10.3
1.9
1960
393,000
2.2
9.2
2.3
1970
708,000
3.5
14.9
3.2
1980
1,189,000
5.2
22.6
6.2
1985
1,190,000
5.0
21.7
7.6
1990
1,182,000
4.7
20.9
8.3
1995
1,169,000
4.4
19.8
9.2
2000
1,182,000
4.1
~ 16.6 (est.)
-
2005
957,2000
4.1
~ 15.2 (est.)
-
Unmarried Cohabitants in USA,
1970-2006
Year
Unm’d P Hhlds
% Hhlds SSP Hhlds
%
1970
1980
1990
2000
2006
523,000
1,589,000
3,668,000
5,500,000
6,017,462
0.8%
2.0%
3.1%
4.3%
5.4%
0.7%
•
770,267
Total UPH
111,617,400
Source: Statistical Abstract of the United States 1994 at 56 & 58; id. 1996 at Table 61 & 62; id.
2000 at tables 57 & 60; id., 2009, Table 62.
U.S. CHILDREN BORN OUT OF WEDLOCK, 1940-2007
Year
All Races
Number
Rate/1000 live
births
White Number
Rate/1000 live
births
Non-White
Number
Rate/1000 live
births
1940
89,500
38
40,300
19.5
49,200
168.3
1950
141,600
40
53,500
17.5
88,100
179.6
1960
224,300
53
82,500
22.9
141,800
215.8
1970
398,700
107
175,100
56.6
223,600
349.3
1980
665,747
184
320,063
110.4
345,684
484.5
1990
1,165,400
266
647,400
169
472,700 bl
667 bl
2000
1,347,000
332
866,000
271
427,000 bl
685 bl
2005
1,527,000
369
--
317
--
693 bl
2007
1,714,600
397
--
--
--
--
Source: Statistical Abstract of the United States
Utah Children born to Unwed Mothers, 1970-2005
Year
Births to Unmarried Mothers
Rate per 1,000 live births
1970
1,208
45.0
1975
1,318
41.7
1980
2,604
62.3
1985
3,248
87.0
1990
4,890
135.4
1995
6,216
157.1
2000
8,175
172.7
2005
9,101
176.7
Abortions, 1972-2005
Abortions: 1972-2005 (AGI data)*
Year
Number
Abortions
1972
587,000
1975
Abortion
Rate/
1000
Women
Abortion
% Abortion
Repeaters
Ratio/ 100
Pregnancies
--
--
--
1,034,000
21.7
24.9
15.2 (74)
1980
1,554,000
29.3
30.0
33%
1985
1,589,000
28.0
29.8
41%
1990
1,609,000
27.4
28.0
45%
1995
1,359,400
22.5
25.9
47%
2000
1,313,000
21.3
24.5
48%
2005
1,206,200
19.4
22.4
47%
*The Alan Guttmacher Institute produces the most reliable data on
abortions in the United States. However, even the AGI estimates that 36% of all abortions are unreported. (CDC data is usually 12-19% lower
than AGI because of CDC’s passive methods.)
Many women obtaining abortions have had a
previous abortion, but the proportion has stabilized
over time
(GITiA08)
% of abortions obtained by women who had a previous abortion
100%
80%
60%
40%
20%
0%
1973 1975 1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003
U.S. Families with Children,
1990-2007
Year
1960
1970
1980
1990
2000
#Fams/crn
-
-
-
32.289 M 24.605 M 36.757 M
“ - % all
fams
-
-
-
49%
# FwC
Married
-
-
-
24.537 M 25,248 M 26,158 M
“ - % all
fams
-
-
-
47%
48%
46%
2007
47%
44%
Legal Status of Marriage As
Union of Man and Woman in the
United States and the World
August 1, 2009
I. Push: Nations (/191) & States (/50)
Allowing Same-Sex Marriage/Unions
Same-Sex Marriage Legal: Seven(7)* Nations and Six (6) USA States: The
Netherlands, Belgium, Canada, Spain, South Africa,* Norway & Sweden (US: MA,
CN, IA, VT, ME & NH [CA-overturned, ME ‘people’s veto’ pending])
Same-Sex Unions Equivalent to Marriage Legal in Thirteen Nations and Five US
States: Denmark, Norway, Sweden, Iceland, Finland, France, Germany,
Luxembourg, Slovenia, South Africa*, Andorra, Switzerland, UK, New Zealand (US:
CA, NJ, OR, WA, NV) (CUs replaced by SSM in VT, CN, NH)
Same-Sex Unions Registry & Some Benefits in Seven Nations and Three US
states: Argentina, Columbia, Croatia, Czech Republic, Hungary,* Israel, Portugal
(US: AK, HI, MD, + DC) (*Hungarian Constitutional Court invalidated domestic
partnership law as degrading marriage 081215)
Nations (0) With Constitutions Explicitly Requiring Same-Sex Marriage—None
Nations (2) Where the Judiciary Has Required Same-Sex Marriage:
Canada & South Africa (US States: MA & CA [+ VT & NJ sscu])
Nations (4) Where the Political Branches Have Adopted Same-Sex Marriage:
The Netherlands, Belgium, Spain, Norway & Sweden
Global (US) Progress of Same-Sex Marriage,
and Marriage Equivalent Civil Unions or
Partnerships, 1985-2009
YEAR
1985
Same-Sex MarriageSame-Sex
Equivalent
Marriage (US)
Unions/Partners (US)
0
0
1990
0
1
1995
0
3
2000
0
6 (1)
2005
3 (1)
13 (3)
2007
5 (1)
15 (6)
2009Au
7 (6)
13 (5)
Conclusions:
II. Response:
A. U.S. States Barring
Same-Sex Marriage/Unions
Same-Sex Marriage Prohibited by law or appellate court decision in Fortytwo States:
(All but MA, CN, IA, VT, ME, NH, NM, RI & VT)
Same-Sex Marriage Prohibited by State Constitutional Amendment in
Thirty (30) States:
(AK, AL, AR, AZ, CA, CO, FL, GA, HI, ID, KY, KS, LA MI, MS, MO, MN,
NB, NV, ND, OH, OK, OR, SC, SD, TN, TX, UT, VI, & WI)
Same-Sex Civil Unions Equivalent to Marriage Prohibited by State
Constitution Amendment in Nineteen (19) USA States
(AL, AR, FL, GA, ID, KS, KY, LA, MI, NB, ND, OH, OK, SC, SD, TX, UT,
VI, WI)
Three Types of State Marriage Amendments
Ten SMAs Protect Status of Marriage:
AK, AZ, CA, CO, MS, MO, MN, NV, OR, TN
E.g., “To be valid or recognized in this State, a marriage may exist only
between one man and one woman.” Alaska Const., Art. I, sec. 25 (1998)
Nineteen SMAs Protect Substance of Marriage (Forbid Giving Equivalent Substance to
DPs or CUs):
AL, AR, FL, GA, ID, KS, KY, LA, MI, NB, ND, OH, OK, SC, SD, TX, UT, VI, WI
E.g., “Marriage consists only of the legal union between a man and a woman.
No other domestic union, however denominated, may be recognized as a
marriage or given the same or substantially equivalent legal effect.” Utah
Const., Art. I, sec. 29 (2004)
One SMA Protects Government Structure (Legisla. Can Ban SSM): HI
“The Legislature shall have the power to reserve marriage to opposite-sex
couples.” Haw. Const., Art. I, sec. 23 (1998)
(Overall voter approval rates for state marriage amendment is nearly
67%)
Additional USA Developments Protecting
Marriage
Maine “people’s veto” (100,000 signatures on petitions
submitted 7/31/09 (well over 55,000 required)
Iowa polls (after Varnum SCt ruling) 67% people oppose
SSM. 2010 con-con Q on ballot
CA after much blustering and threatening and beginning
to collect signatures, major gay marriages orgs in CA
will not support amend to overturn Prop 8 in 2010.
Nations (/191-UN) Barring
Same-Sex Marriage/Unions:
One hundred fifty-one (151) Nations (/191) have Constitutional
Provisions Protecting “marriage” an/or “family.”
Eighty-five (85) Nations (/191) Have Substantive Constitutional
Provisions Protecting “marriage”
(By Comparison Homosexual Relations Still are Illegal in 67+
Nations (and a capital offense in 9 Nations)
Major Sources: Sodomy Laws, Laws Around the World, last updated June 2, 2006, availabe at http:sodomylaws.org/world/world.htm (last seen 16 July 2008)
Elizabeth Kukura, Finding Family: Considering the Recognition of Same-Sex Families in Human Rights Law and the European Court of Human Rights, 13 Hum.
Rts. Br. 17, 17-18 (Iss. No. 2, Winter 2006); National Conference of State Legislatures, Same Sex Marriage (Jan 2007), available at
http://www.ncsl.org/programs.cyf/samesex.htm (homosexual relations capital crime in Afghanistan, Iran, Mauritania, Nigeria, Pakistan, Saudi
Arabia, Sudan, UAE, Yemen)
Thirty-seven (37) of 191 Sovereign Nations (19%) Have
Constitutional Provisions Explicitly or Clearly Adopting
Conjugal Marriage Form - Union of Man and Woman
• Armenia (art. 32), Azerbaijan (art. 34), Belarus (art. 32), Brazil (art. 226),
Bulgaria (art. 46), Burkina Faso (art. 23), Cambodia (art. 45), Cameroon (art.
16), China (art. 49), Columbia (art. 42), Cuba (art. 43), Ecuador (art. 33),
Eritrea (art. 22), Ethiopia (art. 34), Gambia (art. 27), Honduras (art. 112),
Japan (art. 24), Latvia (art. 110 – Dec. 2005), Lithuania (art. 31), Malawi (art.
22), Moldova (art. 18), Serbia (art. 62), Somalia (art. 2.7), Suriname (art. 35),
Swaziland Constitution (art. 27), Tajikistan (art. 33), Turkmenistan (art. 25),
Uganda (art. 31), Ukraine (art. 51), Venezuela (art. 77), Vietnam (art. 64). See
also Mongolia (art. 16), Hong Kong Bill of Rights of 1991 (art. 19).
Examples: Article 45 of the Cambodian Constitution: (4) Marriage shall be
conducted according to conditions determined by law based on the principle of
mutual consent between one husband and one wife.
Article 42 of the Constitution of Columbia: the family “is formed . . . by the free
decision of a man and woman to contract matrimony . . . .”
Article 24 of the Constitution of Japan: “Marriage shall be based only on the
mutual consent of both sexes and it shall be maintained through mutual
cooperation with the equal rights of husband and wife as a basis. . . .”
Article 110 of the Constitution of Latvia now reads: “The State shall protect and
support marriage—a union between a man and a woman,…”
• The Universal Declaration of Human Rights adopted
1946, recognizes that “[t]he family is the natural and
fundamental group unit of society and is entitled to
protection by society and the State.”
35 International Treaties, Charters, Conventions and other Legal
Documents with Provisions Concerning Marriage and/or Families
(Research originally compiled by Scott Borrowman, J.D., 2005)
• Convention on the Prevention and Punishment of the Crime of
Genocide
• Convention relating to the Status of Refugees
• Supplementary Convention on the Abolition of Slavery, the Slave
Trade, and Institutions and Practices Similar to Slavery
• International Convention on the Elimination of all Forms of Racial
Discrimination
• Convention on Consent to Marriage, Minimum Age for Marriage
and Registration of Marriages
• Recommendation on Consent to Marriage, Minimum Age for
Marriage and Registration on Marriages
• International Covenant on Civil and Political Rights
• International Covenant on Economic, Social and Cultural Rights
• Convention on the Elimination of All Forms of Discrimination
against Women
• Hague Convention on the Civil Aspects of International Child Abduction
• Convention on the Rights of the Child
• European Convention for the Protection of Human Rights and Fundamental
Freedoms
• American Convention on Human Rights
• American Declaration of the Rights and Duties of Man
• Conference on Security and Co-operation in Europe, Final Act (Helsinki
Accord)
• African Charter on Human and People’s Rights (Banjul Charter)
• African Charter on the Rights and Welfare of the Child
• Protocol to the African Charter on Human and Peoples’ Rights on the Rights
of Women in Africa
• Geneva Declaration of the Rights of the Child of 1924
• United Nations General Assembly Universal Declaration of Human Rights
• Declaration of the Rights of the Child
• Proclamation of Tehran
• Declaration on Social Progress and Development
• Declaration on Social Progress and Development
• Declaration on the Rights of Mentally Retarded Persons
• Declaration on the Protection of Women and Children in Emergency and
Armed Conflict
• Declaration on the Rights of Disabled Persons
• Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief
• International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families
• Cairo Declaration on Human Rights in Islam
• Declaration on the Elimination of Violence against Women
• Draft Declaration on the Rights of Indigenous Peoples
• Beijing Declaration and Platform for Action, Fourth World Conference on
Women
• Proposed American Declaration on the Rights of Indigenous Peoples
III. Adoption by Same-Sex Couples & Partners
Status of Law in USA (August 19, 2009) re:
Adoption of Children by Gay and Lesbian Couples & Partners
21 States and DC have statutes or appellate court rulings on whether same-sex couples/partners can
adopt; seven other states have other legal developments that strongly suggest what the result
will be; so in a total of 28 states + DC the issue is largely resolved. The issue is undecided in 22
states.
Adoption by homosexual individual not barred per se in most states.
Prohibited = 9 (AL, AR, FL, KY, MS, NE, OH, UT, WI)
Probably Prohibited = 1 (OK)
Total Prohibited or Probably Prohibited = 10 states
Allowed = 13 (CA, CO, CN, DC, IL, IN, ME, MA, NH, NH, NY, PA & VT)
Probably Allowed = 6 (IA, NC, NV, OR, TN, WA)
Total Allowed or Probably Allowed = 18 states + DC (19)
Undecided = 22 (AL, AZ, DE, GA, HI, ID, KS, LA, MD, MI, MN, MO, MN, NM, ND, RI, SC, SD,
TX, VA, WV, WY)
The policy varies according to which branch of government took the initiative. As of 2006: In 11/16 sts where
the courts had acted first allowed lesbigay adoption; In 4/5 states where a legislature acted first to address
the issue, the rule adopted has barred lesbigay adoption.
Number of Children in the USA Being
Raised by Same-Sex Partners:
Activist estimates: 1M, 4M, 6M, 14 Million children; 1.5-6M couples Grossly inflated (or
premature?)
LDW: 300,000 – 400,000 children being raised by SSCs
Lambda Legal: 250,000 children being raised by SSCs “According to recent data, there
are roughly 250,000 children in the United States being raised by same-sex couples.
But the rights of LGBT parents vary widely among states. About half of all states
permit second-parent adoptions by the unmarried partner of an existing legal parent,
while in a handful of states courts have ruled these adoptions not permissible under
state laws.”
Source: http://www.lambdalegal.org/our-work/issues/marriage-relationshipsfamily/parenting/ (071001)
Number of Children Adoption by Same-Sex Partners:
2000 Census: 57,693 children being raised by unm’d couples (11%=SSCs)
Est. 6,500 children adopted by lesbigay couples
BUT, “Gayby” boom since 2000! Probably tens of thousands now.
Recent estimates = 65,000 adopted cren in L&G homes (probably inflated or confused).
Gates, et al, UCLA Law School, Adoption and
Foster Care by Gay & Lesbian Ps in the US
(Williams Insti & Urban Insti, Mar 2007)
Gates Adoption & Foster Care
Estimates (2007)
Adoption:
An estimated 65,500 adopted children are living with a lesbian or gay parent.
(No actual count; est. 1.6% adoption rate by G&L households; est. G&L adopt av. 1.3
cren; est. 4.1% of all adopted cren living in G&L households.)
More than 16,000 adopted children are living with lesbian and gay parents in
California, the highest number among the states.
Gay and lesbian parents are raising four percent (4%) of all adopted children in the
USA.
Same-sex couples raising adopted children are older, more educated, and have more
economic resources than other adoptive parents.
An estimated two million GLB people are interested in adopting.
More than one in three lesbians have given birth and one in six gay men have fathered
or adopted a child.
More than half of gay men and 41 percent of lesbians want to have a child.
Foster Care:
An estimated 14,100 foster children are living with lesbian or gay parents.
Gay and lesbian parents are raising three percent of foster children in the United States.
A national ban on GLB foster care could cost from $87 to $130 million.
International Status of Adoption by SameSex Partners (2007)
Adoption by lesbian and gay partners and/or couples is reportedly allowed by
law in at least some circumstances in at least ten Euopean nations (Andora,
Belgium, Denmark, Germany, Iceland, the Netherlands, Norway, Spain,
Sweden, and the United Kingdom).
It is permitted in at least two other nations outside of Europe with European
colonial/historical roots (Israel and South Africa).
It is allowed in some parts of three other largely-European-settled nations
(Australia, Canada, and the United States).
The Hague Convention on Inter-Country Adoption leaves
allowance/prohibition of trans-national adoption by gay and lesbian
couples/partners to each country involved, but is intended to require full
and honest disclosure. The Convention leaves recognition of such adoptions
to each country. The US implementing legislation does not directly address
the issue, the arguably may indirectly require recognition of international
adoptions from other countries that have signed the Hague Convention on
Inter-Country Adoption.
Public Support for Adoption by SameSex Partners in Europe
2003 European Omnibus Survey (ints / 15,000 persons in
30 European nations):
Majority favor SSP Adoption: 4 nations
Majority oppose SSP Adopt: 26 nations
2006 Eurobarometer Poll (for EC):
Majority favor SSP Adoption: 2 nations
Support for SSP Adopt =<33%: 18 ntns
Conclusions:
Be of Good cheer!!
We live in the “best of times” despite the
adversity and challenges.
We have a great opportunity to “stand for
something.”
By becoming informed and by speaking up
appropriately, courageously respectfully,
and by refusing to be intimidated or
coerced into silence we can make a huge
difference.
• THANK YOU!