Those who seek to broaden the definition of “marriage” and “family” in order to secure for same-sex couples all the benefits that states confer on couples in a traditional marriages (between a man and a woman) are pursuing a course which will undermine marriage and which is geared to bring increased hardships and difficulties to children. Therefore, these efforts to redefine marriage should be defeated.

In October 2007, Maryland’s highest court (the Court of Appeals) upheld a state law stating that marriage in Maryland can only be between a man and a woman. Conaway v. Deane (2007). (See the November 2007 issue of CLU.) This ruling is in line with that of virtually every other state in the nation, except Massachusetts, in holding (1) that limiting marriage to heterosexual couples DOES NOT violate the Equal Protection Clause of the Fourteenth Amendment of the Constitution; (2) that a rational basis exists for excluding same-sex couples from marriage; and (3) that there is no “fundamental right” under the Constitution to same-sex marriage. However, while this battle is now over, the war continues. The next battle front issue in the gays’ war to obtain special rights has moved to the Maryland State Legislature, where a handful of bills have been introduced that seek to have benefits conferred on gay couples through either establishing “civil unions” or “domestic partnerships,” or through broadening the definition of marriage to include same-sex marriages. For states to pass such laws is certainly permissible, unless the Constitution should be amend-ed to provide otherwise. The key issue in this debate appears to be summed up by this line of thinking: If we can pass a law extending to gay couples some of the benefits of “marriage” without hurting the institution of marriage, then I will do it. I believe that the “If” clause in this statement is an impossibility, and that therefore the State should not broaden its definition of marriage to include same-sex unions.

There appear to be some undecided delegates on the Maryland House Judiciary Committee who are prepared to vote to preserve marriage, such that they would vote not to create “civil unions” nor “domestic partnerships” nor to broaden marriage to include same-sex couples IF they find evidence that extending marriage-like benefits to same-sex couples would have an adverse effect on families and children. But if they cannot find such a negative correlation, then they may vote to extend these additional rights to gay couples.

It is the purpose of this issue of CLU to articulate such an argument that can help this handful of legislators to see what the negative effects would be from extending these special rights to gay couples. There follows copies of two letters I submitted to the Judiciary Committee on February and March, which attempt to answer this important cause-effect inquiry. I offer them here because I believe they are helpful.

1. This issue is now before the California Supreme Court, which challenges Proposition 22 (passed by the people of California in 2000, making marriage only between a man and a woman. The case arose from the actions by the City of San Francisco, that licensed approximately 4,000 gay marriages in 2004.
2. A federal marriage amendment has been proposed that would establish a national standard. See CLU, May 2004.

]]> http://www.cpaulsmith.com/2008/03/21/re-defining-family%e2%80%94a-way-to-destroy-it/feed/ 0 http://www.cpaulsmith.com/2007/10/08/court-upholds-traditional-marriage/ http://www.cpaulsmith.com/2007/10/08/court-upholds-traditional-marriage/#comments Tue, 09 Oct 2007 03:51:00 +0000 admin /cps/post/2007/10/08/Court-Upholds-Traditional-Marriage.aspx

COURT OF APPEALS UPHOLDS STATUTE LIMITING MARRIAGE TO OPPOSITE-SEX COUPLES

On September 18, 2007, the Maryland Court of Appeals issued the long-awaited ruling in the case of Conaway v. Deane (September Term, 2006, Case No. 44), upholding the constitutionality of the Maryland law that “[o]nly a marriage between a man and a woman is valid in this State” (Family Law Article, Section 2-201). The Court of Appeals by a 4-3 vote, rejected the plaintiffs’ arguments that the Maryland law violated both the State Equal Rights Amendment (Article 46) and the Equal Protection Clause of the Fourteenth Amendment. The Court also rejected the argument that there is a “fundamental right” to same-sex marriage.[1]

Background.
Around the country, those who follow the development of gay rights and the effort of gays to secure the right to same-sex marriage had been waiting anxiously for almost a year for the Court of Appeals to rule. Several other states have weighed in on this issue, and except for Massachusetts,[2] all have upheld state marriage laws that restrict marriage to opposite- sex couples. In late 2006, New York’s high court ruled on this issue;[3] and the Maryland Court followed that court’s holding on the main points. Also in 2006, the Supreme Court of New Jersey came down with a ruling that upheld traditional marriage, but ordered its state legislature to create within 180 days a new law providing civil unions for gay partners.[4] But the vast majority of states that have addressed the issue, have resolved it much like the Maryland Court of Appeals. Judge Glen Harrell’s majority opinion gives a thorough treatment of all the key issues.[5]

Even though Circuit Court Judge Brooke Murdock had ruled in favor of plaintiffs (Deane et al, appellees), it was still the plaintiffs who had the greater burden on appeal because the appeal was primarily based upon questions of law rather than questions of fact; and the established law was not on plaintiffs’ side. If Deane et al were to prevail, the Court of Appeals would have to depart from traditional interpretations of the applicable law. Those around the country who have followed this issue saw the possibility that Maryland might depart from traditional interpretations because of its long history of recognizing and legislating rights and benefits for gays. But while Maryland was certainly at the forefront of such national trends, this history had a flip side that argued against the plaintiffs because for the last 30+ years, almost every time the Maryland Legislature would pass a law extending special rights to gays, the Legislature would also pass a disclaimer that specifically qualified the application of such rights—that the bestowal of new rights was not to be construed in any way to affect the Maryland law that limits marriage to only a man and a woman. Thus, while Maryland was at the forefront in recognizing rights for gays, the State also made it specifically clear from the outset that both the State ERA and the bestowal of state rights for gays did not extend to a right to same-sex marriage.

Maryland’s ERA.
With that background, when the case came before the Court of Appeals, the State’s history of recognizing gay rights was of only limited value—it was a double-edged sword, so to speak. The Court first addressed whether the marriage statute’s prohibition of same-sex marriages violated the State ERA. The Court had never before construed the ERA to invalidate the statute restricting marriage to opposite-sex couples. And the majority opinion again declined to do so.

Standard of Review.
The next major issue addressed in Judge Harrell’s opinion was which of the three levels of scrutiny to apply to the Maryland law—strict scrutiny, intermediate scrutiny, or rational basis review.[6] The Court made a lengthy analysis of and rejected plaintiffs’ (appellees’) arguments that gays were a protected class, that heightened or strict scrutiny was warranted, and that there existed a fundamental right to marry someone of the same sex. By a 4-3 vote, the Court found no “protected class,” no “suspect criteria” and no “fundamental right”; and the Court therefore ruled that strict scrutiny was not proper. The Court also failed to find a basis to apply the intermediate (or heightened) scrutiny.[7]The Court held that the rational basis standard was the proper one (Conaway, p. 96).

To satisfy the minimal, “rational basis” test, “a statute reviewed under the rational basis test enjoys a strong presumption of constitutionality, [and] can be invalidated only if the classification is without any reasonable basis and is purely arbitrary” Conaway, at 97, citing Whiting-Turner Contract Co. v. Coupard, 304 Md. 340, 352 (1985). As long as the court can find any conceivable reasonable basis for the statute, it will pass muster. Thereafter, predictably, the Court found that there existed a rational basis for the disparate treatment.[8] The Court held that “the State’s legitimate interest in fostering procreation and encouraging the traditional family structure in which children are born” is an adequate and proper basis to supports limiting marriage to opposite-sex couples.[9] Judge Battaglia, in her dissent, argued that the statute should be subject to strict scrutiny (not rational basis scrutiny), and she further stated that she would have remanded the case for a thorough hearing on the issue of whether or not the State could meet the burden to show that it had a compelling interest to justify the discriminatory treatment.[10]

The Equal Protection Clause.
In determining whether the Equal Protection Clause has been violated, if a challenged law affects a “protected class,” then the Maryland statute could be upheld only if the state had a “compelling interest” to justify the disparate treatment, and only if the court would “strictly scrutinize” the statute and the state interests to make sure that the stringent test had been satisfied. But, if no protected class and no suspect criteria is involved, then the Maryland statute need only satisfy the rational basis test (as explained above). Appellees’ argument that strict scrutiny must be applied was based primarily upon the argument that the marriage law discriminated against a class of people; and they argued that Loving v. Virginia, 388 U.S. 1 (1967) supported this view.[11] But the majority disagreed and held that the Virginia law in Loving was blatant “anti-black legislation” and that the rule articulated in Loving was a prohibition from subordinate treatment of either women to men or men to women, as a class.[12] The majority applied the traditional, most widely accepted interpretation of Loving—that it prohibits classifying males or females as a class in the absence of a compelling state interest. Accordingly, because the Maryland marriage restriction applies to males the same way it applies to females, therefore the statute does not impinge upon the rights of any protected class.[13]

The Fundamental Right Argument.
The remaining major issue in the case was whether or not there existed a “fundamental right” of one person to marry another person of the same sex. To start with, it was acknowledged by all that there is a fundamental right to marry. But the definition of that right was subject to dispute. Deane et al argued that the fundamental right to marry included the right to marry someone of the same sex. But the State countered that the fundamental right to marry has always been limited by the traditional meaning of marriage—that it is between a man and a woman, and that therefore the right to marry has always been limited to the right to marry someone of the opposite sex. The latter interpretation was adopted by the majority.

The Future.
The majority opinion in Conaway v. Deane is 110 pages in length, and the three dissenting opinions added another 130 pages. (Judge Bell concurred with both Judge Battaglia and with part of Judge Raker’s opinion; then Judge Bell added a brief dissent of his own for good measure.) With that many pages of reasoning and rhetoric, one could certainly identify other important parts of the opinions that I have failed to address. And it is not expected that this ruling will end all debate of this important social issue. I don’t think anyone is predicting that the issue is now settled. In Maryland, I would predict that the next forum for this debate will be in the Legislature, where in 2008 I expect to see both a bill to amend the Constitution to restrict marriage to a man and a woman, and opposing bills to both legitimize same-sex marriage and to authorize civil unions for same-sex couples. On that point it is of interest to note that there is now pending before the Supreme Court of California, several “Marriage cases,” which have been combined together, and in which that Court is being asked to rule on the constitutionality of California Referendum No. 22, where the voters rejected civil unions and voted to restrict marriage to only opposite-sex couples.[14]

[1] It is not known at this time whether Deane and the other plaintiffs will petition the Supreme Court for a writ of certiorari, or whether such a petition would be granted.
[2] Goodridge v. Dep’t of Public Health, 798 N.E.2d 941 (Mass. 2003).
[3] Hernandez v. Robles 855 N.E.2d 1 (N.Y. 2006).
[4] Lewis v. Harris, 908 A.2d 196, 200 (N.J. 2006). The Vermont Supreme Court had ruled similarly in 1999. Baker v. State, 744 A.2d 864 (1999).
[5] At the circuit court level, Judge Murdock had based her ruling on Article 46 (the state ERA) and on the Equal Protection Clause, but not on the basis of a “fundamental right.” The Court could have declined to deal with any issues other than those that were addressed by Judge Murdock. But at the outset of the majority opinion, Judge Harrell explained that the Court would be addressing other issues that are relevant, including the fundamental rights issue.
[6] Conaway, pp. 43-47. At these pages Judge Harrell identified the three types of scrutiny, and then proceeded to discuss which level of scrutiny was warranted to address the Maryland statute.
[7] With regard to the intermediate level of review, the Court addressed the issue of whether or not homosexuality was innate, and implied that if it were that the Court might apply either strict scrutiny or heightened scrutiny. But the Court, after examining various scientific studies on the issue, specifically declined to find homosexuality to be an immutable characteristic. Conaway, pp. 66-70.
[8] Of the dissenting Judges, Chief Judge Bell and Judge Battaglia argued that strict scrutiny was warranted. Judge Raker agreed with the majority, that the rational basis test should be applied (Conaway, Raker, J., dissenting, at p. 5). However, Judge Raker went on to argue that the Maryland statute could not withstand rational basis scrutiny. While Chief Judge Bell argued that “strict scrutiny” applied, he nevertheless concurred with Judge Raker’s analysis that the statute failed to meet the rational basis test. I would submit that Judge Raker’s application of the rational basis analysis is a major departure from the traditional interpretation and application of that test.
[9] Conaway, pp. 98 and 109.
[10] Conaway, Battaglia, J., dissenting, at p. 80. Judge Battaglia correctly pointed out that the case had not yet fully developed and explored: “Neither party has explored this issue in the depth appropriate to an issue of such permanent, transcendent magnitude.” Id. Of course, the case was decided on the basis of summary judgment motions, and the court had only been presented sparse evidence on sociological and societal impact of various child-rearing possibilities, and therefore the court was not in a position where it could properly rule on the compelling interest issue.
[11] Conaway, pp. 37-41. In Loving the Supreme Court held unconstitutional a Virginia Miscegenation statute that prohibited marriages between blacks and whites.
[12] Id., 41.
[13] Appellees argued that the Court of Appeals had previously ruled in Giffin v. Crane, 351 Md. 133, 716 A.2d 1029 (1998), that if a law makes sex a factor in a legal distinction, then the state ERA is violated. However, Judge Harrell pointed out that a review of the reasoning of Giffin in its context made it clear that the Court was speaking of distinctions between men and women as classes. Conaway, at 27. Judge Harrell pointed out that his conclusion is supported by the majority of the federal and state courts that have addressed this issue, including the Court of Appeal of Washington, that stated in Singer v. Hara,522 P.2d1186 (Wash. App. 1974) that to interpret an ERA in a way that requires states to permit same-sex marriages “would be to subvert the purpose for which the ERA was enacted.” Id., at 1194. The three dissenting Judges (Chief Judge Bell, Judge Raker and Judge Battaglia) all agreed with Judge Murdock that this interpretation is erroneous; they argued that since the law prohibits someone from marrying another based upon the sex of the partner, that this is sexual discrimination that violates both the State ERA and the Equal Protection Clause of the Fourteenth Amendment.
[14] That case if both interesting and important. The State’s Attorney General argued successfully against Referendum 22 at the first appellate level, where that court ruled that the Referendum was unconstitutional. The issue in California involves some of the same issues covered by the 2006 New Jersey case (Lewis v. Harris, 908 A.2d 196, 200 (N.J. 2006) ) and the 1999 Vermont case (Baker v. State, 744 A.2d 864 (1999)).

On September 18, 2007, the Maryland Court of Appeals issued the long-awaited ruling in the case of Conaway v. Deane, upholding the constitutionality of the Maryland law that “[o]nly a marriage between a man and a woman is valid in this State” (Family Law Article, Section 2-201). The Court of Appeals by a 4-3 vote, rejected the plaintiffs’ arguments that the Maryland law violated both the State Equal Rights Amendment (Article 46) and the Equal Protection Clause of the Fourteenth Amendment. The Court also rejected the argument that there is a “fundamental right” to same-sex marriage.¹ It is anticipated that any future efforts to establish a right to same-sex marriage in Maryland will take place in the State Legislature.² When that debate takes place it will certainly include a debate of whether gay couples can raise children as well as heterosexual, married couples. Current studies demonstrate that married, heterosexual couples are better for raising children than other combinations, including both single-parents and same-sex partnerships.

The superiority of the traditional marriage relationship for the rearing of children is supported by both the advantages of marriage to the couple and to the children.

To begin with, the benefits to married partners are better than the benefits to single parents or co-parenting adults. Married men and women are more likely to be financially stable.³ Married adults have greater longevity, less illness and disease, better health and health care, increased happiness, lower levels of mental illness (including depression), and less substance abuse than both single and co-habiting adults.⁴ Homosexual people are at a substantially higher risk for some forms of emotional problems, including suicidality, major depression, and anxiety disorder.⁵ Homosexual women have a higher prevalence of substance use disorders than heterosexual women.⁶ Gay, lesbian and bisexual high school students have higher incidences of alcohol use, cocaine use and illegal inhalant use than others.⁷ The benefits from traditional marriage help parents to be better at rearing children than single parents and co-habiting adults.

Studies also provide direct evidence that traditional marriage relationships are better for the rearing of children than either single-parents or cohabiting adults, including same-sex couples.⁸Dr. A. Dean Byrd states that “Mothers and fathers contribute in gender-specific and in gender-complementary ways to the healthy development of children.⁹ In support of this, Dr. Byrd referred to the following summary of Child Trends research:
Research clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage…. There is thus value for children in promoting strong, stable marriages between biological parents.¹⁰

Dr. Byrd states that “extensive research spanning decades yields an overwhelming abundance of data supporting the importance of both mothers and fathers to the healthy development of children.”¹¹ In 1982 Baumrind concluded that children of dual-gender parents are more competent, function better, and have fewer problems than other children.¹² In 1991 Baumrind found that the combined parenting from a mother and a father in the home provided complementary benefits to the children.¹³ In 1984 Greenberger confirmed and bolstered Baumrind’s 1982 study; Greenberger’s study found that the optimal development of children requires gender-specific and gender-complementary contributions that a mother or a father cannot do alone.¹⁴ The difference between mothers’ and fathers’ parenting styles have been confirmed by studies, including studies by Rossi (1987)¹⁵and Shapiro (1994)¹⁶. A study by Clarke-Stewart (1980) concluded that fathers’ play and mothers’ play with their children are different, and that each offers distinct benefits to the children.¹⁷ Studies by Rohner and Veneziano (2001)¹⁸ and by Diener (2002)¹⁹ documented the unique contribution that fathers make in the development of a child. The absence of a father in the home has been linked to teenage pregnancy, child abuse, domestic violence and the need for psychiatric care. ²⁰ The discipline styles of fathers and mothers also tend to be different, and it is beneficial to children to be exposed to both styles.²¹ A study by Golombok, Tasker & Murray (1997) found that the deficits experienced by children in “father absent families” is no different than the deficits experienced by children raised in lesbian families.²² The adverse affects of the absence of a mother in raising children has also been documented. The 1998 study by Eisold confirmed this.²³Research confirms that mothers and fathers are not interchangeable; each provides separate and distinct advantages for the raising of children.²⁴

Advocacy groups insist that same-sex parents can raise children as well as opposite-sex parents. But Dr. Byrd says that “studies on same-sex parenting are quite limited and quite limiting,”²⁵ and that most studies that have been cited in support of this proposition have either serious research flaws or other limitations that affect their conclusions.²⁶ In 2000, Lerner and Nagai made a detailed analysis of 49 studies that purported to show that homosexual parents raise children as well as married biological parents. Lerner and Nagai concluded that all 49 studies suffered from “severe methodological flaws, plus other problems.²⁷ These conclusions were confirmed by Williams (2000),²⁸ Nock, a sociologist at the University of Virginia,²⁹ and Stacey and Biblarz (2001).³⁰ Wright and Cummings also noted these serious flaws in their book, Destructive Trends in Mental Health (2005).³¹ More recently, a study by Wainwright and Patterson refuted the claim of some gay activists that incidents of delinquency and substance abuse in adolescents raised by lesbian couples does not differ from those raised by heterosexual couples.³²

Based upon this and other research, George A. Rekers concluded that children are better off raised by heterosexual parents than by gay couples.³³ A 2005 study by Dean Byrd also confirms this conclusion.³⁴
Finally, I would make the obvious argument that a gay couple cannot model a healthy male-female relation between the parents. This statement is beyond the need for proof by scientific study, but its importance should not be overlooked. Over 99 percent of society’s children have and will continue to marry in traditional opposite-sex marriages, where children will be conceived, born and raised.³⁵ There is nothing more geared to the happiness and success of individuals than a happy, traditional family, where parents are able to meet the many and varied needs of male and female children. It is advantageous to the children to have both a male parent and a female parent, each of whom can supply different but important counsel and leadership. When a child is reared in a home with a mother and father who love each other, this is the supreme situation that society can elect to establish. Restricting marriage to opposite-sex couples establishes this preference.

Scientific studies support the conclusion that biological parents are more likely to be better than single parents and same-sex partners in raising children.