Attorney Discerning

Just another poor dumb sinner; trying to do what he can for Christ & His Church

Thursday, February 22, 2007


Marriage and Family (Focus on the Family)

Dr. Jennifer Roback Morse

Institute for the Study of Marriage, Law, and Culture

The Marriage Institute

United Families International

Defend Marriage!

Marriage Law Foundation.

World Congress of Families

Rutgers University - National Marriage Project

Seymour Institute

BYU Law School - Marriage and Family Law

Alliance Defense Fund

DOMA watch

Boston Globe - Page 1 on Saturday.

Lead editorial in Saturday's Boston Globe. An absurd piece of writing by one of the most pro-homosexual editorial staffs in America. They claim that state "sexual orientation" laws and (non-mandatory) state education guidelines trump Constitutional freedom of religion.

Federal judge dismisses David Parker's civil rights lawsuit

Outrageous ruling goes further, reinforces right of schools to teach homosexuality without parents' consent or choice to opt-out

Read Judge Mark Wolf's complete 38-page ruling (Adobe Acrobat format)

Sisters go to court over 'gay bias' in tax laws

By Joshua Rozenberg, Legal Editor

Treat us like lesbians, say sisters in tax fight

By Joshua Rozenberg, Legal Editor

Anderson: The Family vs. the State
By Ryan T. Anderson Wednesday, October 11, 2006, 11:09 AM

Thursday, February 01, 2007

State / Religious Issues.

This section contains relevant issues concerning the infringment of religious liberties caused by the enactment of same-Sex "marriage", civil unions and related issues such as adoption.

Prof. M. van Mourik, professor in contract law, Nijmegen University
Prof. A. Nuytinck, professor in family law, Erasmus University Rotterdam
Prof. R. Kuiper, professor in philosophy, Erasmus University Rotterdam J. Van Loon PhD, Lecturer in Social Theory, Nottingham Trent University H. Wels PhD, Lecturer in Social and Political Science, Free University Amsterdam

Molly Moore, More Longtime Couples in France Prefer L'Amour Without Marriage, Washington Post Foreign Service, November 21, 2006; A22

Stefan Theil, Why More Married Couples Are Going Childless, NEWSWEEK MAGAZINE, Sept, 4 2006

Men and women are members of a class that can produce children. While any member of that class may not or cannot produce a child, they remain members of a class that can produce children. Same sex pairings can never produce children. They are members of a class that always and everywhere are incapable of producing children.”
Therefore same sex “marriage” necessarily severs marriage from procreation. It both androgynizes the institution and separates it from any necessary link to childbearing.

Quoting Professor Germain Grisez


“Though a male and a female are complete individuals with respect to other functions – for example nutrition, sensation, and locomotion- with respect to reproduction they are only potential parts of a mated pair, which is the complete organism capable of reproducing sexually. Even if the mated pair is sterile, intercourse, provided it is the reproductive behavior characteristic of the species, makes the copulating male and female one organism”

“it is a plain matter of biological fact that reproduction is a single function, yet it cannot be carried out by an individual male or female human being, but by a male and female as a mated pair….”
And notes a though experiment by Grisez

Imagine a type of bodily, rational being that reproduces, not by mating but by some individual performance. Imagine that for these beings, however, locomotion or digestion is performed not by individuals, but only by biologically complementary pairs that unite for this purpose. Would anybody have any difficulty understanding that in respect to reproduction the organism performing the function is the individual, while in respect of locomotion or digestion the organism performing the function is the united pair?

Only the sexual relationships of men and women together produce children. Therefore, only the sexual relationships of men and women together require governmental regulation because of (1) THEIR CAPACITY TOGETHER TO CREATE SOCIAL DISORDER, and (2) that reproduction is a fact and does have important and inevitable consequences on society both good and bad if it is not regulated. Thus, it inevitably must implicate the political and public aspect insofar as the production of future citizens is not only vital to the survival of a nation, but that the REGULATION OF THIS PRODUCTION OF FUTURE CITIZENS IS JUST AS VITAL.

How we ever came to such a state, were something as profound and obvious as the begetting of children is divorced from all reality and routinely denied…is not just Orwellian, it’s Carol -wellian.

Lee Y Yateel.

Abortion is an excellent corollary. I hope to post in greater depth in the future under a post entitled. We told you so

I have sites from near history showing social scientists claiming that abortion would make illegitimacy rare to nonexistent. This is an example of “logical positivism” at work.

Why would anyone have a child out of wedlock, everyone knows that’s bad. With the availability of abortion, women will never choose to have such children. The logic makes perfect sense except for one thing, people aren’t logical … their human!

Well, times change, and the law helps them change…. Illegitimacy was not reduced because of abortion, on the contrary it exploded after Roe v Wade.

Why…well I could explain…but now as then, someone would scream “prove it”. I can do that, but to who’s satisfaction.
For the purposes of this discussion it means those in power.

Their weren’t a lot of Bolsheviks either.



Beyond Same-Sex Marriage: A New Strategic Vision For All Our Families and Relationships

They make no secret of it….

The want to De-privilege the Privileged (traditional marriage)
And privilege the de-Privileged (anything but traditional marriage)

In this regard the first two represent very important, very influential legal opinion. (do look into who is actually leading you… and where)

To the extent that the ALI document dealt with the issue, it was summarizing state responses to these problems.

(from my article on the subject)

Founded in 1923, the ALI includes within its membership many of America’s most influential judges, lawyers, and law professors. The influence of the ALI includes aiding in the Uniform Commercial Code’s drafting, as well as other model codes, such as the Model Code of Evidence, and the Model Penal Code. It has been typically known for its “Restatements of the Law” in certain fields, including contracts, torts, trusts, and conflict of laws.52 This pedigree has established an informal system through such restatements whereby members of the legal community and, significantly, judges, will use these restatements in discerning the direction of their own state's case law when confronted by conflicts in the law and undecided cases with no state precedent, essentially adopting in the process the restatements' recommended thrust or specifics.

It is considered unusual for ALI to make a foray into a field such as family law. Stranger still was for the ALI to recommend changes to existing law. As we have seen, it has been typical for it to simply restate existing law.53 However, the timing of the Report's release made it more than fortuitous.

The Report was released while both the Lawrence and Goodridge cases were pending. Issued only six months before the former and less than a year before the latter decisions were announced, the Report “appear[ed] intended to influence legal developments, particularly those initiated by judicial decisions.”57 As Arizona law professor and editor of the ALI report Mark Ellman noted, “the new report is intended to set guidelines and for individual judges and state legislatures.”58

Equal to the prestige of the body making the Report and its curious timing is the startling nature of the proposals made in The Principles of the Family Dissolution when compared with family law as practiced.

"The major flaw in the Family Dissolution Principles in general, and chapter 6 in particular, is that it deconstructs family relations and tries to “level” marriage, parenting, and “alternative” relationships by greatly expanding the kinds of relationships that are given the same preferred, privileged legal status and benefits as “family” relations. Some aspects of that theme pervade nearly all of the chapters of the Family Dissolution Principles."59

Indeed, David Westfall, writing in the Harvard Journal of Law in an article entitled “Unprincipled Family Dissolution” goes so far as to raise concerns about the “controlled nature of the consultative process”60 used in drafting the Report, noting how the small group of legal academics who produced it had such broad latitude on a subject of such general and public concern.

The remarks of Professor Katherine Bartlett, one of the three principal drafters of the Report, both tells us something about those drafting this work, as well as neatly summing up the drive of the proposals:

"the value I place on family diversity and on the freedom of individuals to choose from a variety of family forms. This same value leads me to be generally opposed to efforts to standardize families into a certain type of nuclear family because a majority may believe this is the best kind of family or because it is the most deeply rooted ideologically in our traditions.”62

52 See The American Law Institute, at
53 The Future of Family Law, Law and the Marriage Crisis in North America A Report from the Council on Family Law at 16
57 Katherine Shaw Spaht THE MEANING OF MARRIAGE The Current Crises In Marriage
58 Karen S. Paterson Love and the Law: A realty Check USA Today, Dec. 4, 2002, at D8
59 David Orgon Coolidge, Widening the Lens: Chapter 6 of the ALI’s Principles, Hawaii and Vermont, 4 J.L. &Fam. Stud. 79 (2002) Id. at 79
60 David Westfall, Harvard Journal of Law and Public Policy 27 (2004): 918-20.
61 Katharine T. Bartlett, “Saving the Family from the Reformers” (Brigitte M. Bodenheimer Memorial Lecture on the Family), University of California, Davis Law Review 31 (1998):

When encountering such debates it is important to note….

“According to statistics provided by both the National Survey of Family Growth and the Evan B. Donaldson Adoption Institute there are approximately 120,000 children in the United States waiting to be adopted each year. About half of these children are adopted by family members, leaving about 60,000 children who are waiting to be adopted by non-related adoptive parents. By contrast, each year there are anywhere between 70,000 and 162,000 married couples in the United States who have either filed for adoption or in process of filing. That means that in any given year, there are between 1.2 and 2.7 married couples per waiting child. In other words, there is no child-centered need to open up adoption to homosexual couples.”

Self-pity is the worst kind of narcissism.

So called gay “marriage” does two things necessarily. (that is it follows axiomatically from the very definitional change)
#1. It androgynies the institution.
#2. It separates it from any necessary connection to procreation.

You can have this type of yuppie coupling as our ideal, but it fails to promote (and indeed undermines) the integration of the two sexes as a essential part of marriage. Most people are heterosexual and only opposite sex pairs can concieve children. Your standard explicitly states that a child’s natural Father (or Mother) is non-essential to marriage. That any combination of adult is sufficient.

It further reinforces and locks in the notion that all family forms are inherently equal. They are not.

Yes, there is a philosophical maxim that reads – “If it’s everything it’s nothing”. We cant defend what we cant define. You are attempting to severe marriage from its historical and biological heritage, this will have a net effect. (leaving aside the already discernable effects in Europe) That effect is that marriage is outdated and any family form including single parenting is acceptable.

Of coarse I’m going further than that. Mine is not a defensive crouch. I find you to be deeply inhumane and narcissistic in your demands. 40 years of a sexual revolution has given us 50% divorce rates, 70% illegitimacy rates and falling rates of marriage overall, cohabitation and un-chosen childlessness. The social scientific evidence for divorce and Fatherless-ness is in. It leads to sky high crime, depression, suicide, violence, gang activity, and a perpetual cycle of child abandonment.

For you to throw the entire institution up for redefinition is the height of self absorption.
We can and must rebuild the social institution of marriage. Its important that all children are born into married households with their own natural parents. This standard should be advanced not undermined. The institution of marriage is infinitely more important than a vehicle for your inclusion.

In Recent Supreme Court ruling on same-sex “marriage” courts do specifically reject the most egregious illogical conclusion of Goodridge, that procreation is some kind of bad faith post-hoc invented reasoning to hide the “real” reason marriage is a husband-wife institution.

From the Washington State Decision

“Plaintiffs also rely on Goodridge, where the Massachusetts court rejected the argument that procreation justified limitation of marriage to opposite-sex couples. The court said that “{t}he ‘marriage is procreation’ argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage.” Goodridge, 440 Mass. at 333. The court held that “it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.” Goodridge, 440 Mass. at 332.

“But as Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple’s willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single- sex couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis.”

Note the court appropriately applies Loving, etc.

The plurality makes strong criticisms of the concurrence and two of the dissents at the outset of its opinion, including charging the main dissent with “sadly overstep[ping] the bounds of judicial review” for suggesting that supporters of marriage laws are bigots. Besides calling the lower court decisions “transparently result-oriented” and a reflection of “the dominant political ideas of their legal community,” the concurrence says: “[t]hough advanced with fervor and supported by special interests loudly advocating the latest political correctness, the arguments (and the dissenters) cannot overcome the plain legal and constitutional principles supporting Washington’s definition of marriage.”

You can agree for any allowance you want to try and win what you want. Problem is the cultural left has a pedigree. They think marriage is archaic and patriarchal.

When Senator Daniel Patrick Monihan published his famous “Report on the Negro family” the cultural left called him a bigot.

When Dan Qualye eschewed Murphy Brown for making single Motherhood “just another lifestyle choice” the cultural left called him a bigot.

The Blogosphere is replete with articles from the NYT and other sources of the cultural left about single women and men “choosing” to raise youngsters on their own. No moral condemnation is made or even suggested. Illegitimacy is not a problem in New Delhi. The correlation with a declining marriage culture is not income, couples live on a bowl of rice and stay together.

I’m afraid the illegitimacy rate is still 70% among the underclass. The lesbian couple next door implicitly states that marriage is androgynized and Fathers are not important. If the cultural left has embraced monogamy and repented from their sexual revolution its news to me. My law school “family” law department was made up of three lesbian strident feminists/polymorist. None of them asserted anything except all family forms are inherently equal, and the traditional family is archaic and patriarchal.

The important thing is not the answer to the question, but who writes the question. Your happy to know that your having your debate on your terms. The capacity of the public for sustained debate on any topic is limited. It’s a precious commodity. Your activists and activist judges have succeeded in pressing this issue. No matter what happens you move your ball down your court.

How do we provide a child with his natural mother and father living together under the same roof? Or.. What is the social utility of traditional morality? Or.. How has the feminist project undermined and alienated relations between the sexes? Or…What accounts for the disintegration of married intact families since the 1960’s? Or… How do we best alleviate and rebuild this broken structure? Or, what accounts for the decline in marriage and increase in cohabitation in Scandinavian countries that have adopted same-sex “marriage”? Or… How can we hope to build a marriage culture around a androgynized definition that separates a Childs natural parent from any necessary connection to his or her child? Or… why is the cultural left suddenly conceding the importance of the family unit when it has spent years calling it archaic a patriarchal? Where were these same people during the divorce revolution? Where were they when Senator Moynihan issued his report on black family disintegration? Could this sudden concession on the importance of marriage and monogamy be a momentary faint in a well documented history of considering all family forms as being inherently equal?

I disagree. I say that allowing SSA couples to marry will do irreparable harm to the institution of marriage by showing that marriage is outdated, any family form is adequate; a Childs own Mother &Father are not inherently necessary to that Childs future and proper upbringing and either sex is ultimately irrelevant to the institution.

Countering sophomoric plea’s of “Prove It!!”

Multiple posters who support ss“m” ultimately regress towards the request that those opposed produce “discreet and demonstrable harms.”

Leaving aside (for the moment) that this is precisely the object of book length projects such as Kurtz, Blankenhorn & others.

Well, one initially notes that our opponents know that a good offense is the best defense. However; one is left wondering how defenders of a universally acknowledged foundational social institution could come to a position of having the burden of proof laid on them.
{In this regard its helpful to note that court has done so…not even Goodridge}

One can attack such foolish requests with a variety of legitimate tactics. (such as)

#1. Social science studies societies, you need to (a) run the experiment (b) see the results (c) argue the results until a consensus emerges.

{In this regard the arguments that divorce harms children is a excellent example}

Often proponents of same-sex “marriage” end up questioning the very veracity of social science as a discipline.

#2. Noting that the “conservative” case for same sex marriage does not defend its causal case that it would strengthen it.

As Dale Carpenter asserts in his recent Post on Blanhenhorns book.

Seriously, here's another "cluster" of beliefs to add to the mix: gay marriage will enhance the primacy of marriage, take the wind out of the sails of the "families we choose" movement, cut off support for the creation of marriage alternatives (like domestic partnerships and civil unions), de-radicalize gay culture, gut the movement for sexual liberation, and reinforce recent conservative trends in family law. So say what we might roughly call the anti-SSM marriage radicals.

Were is the evidence for this set of wild speculations?

#3. Past performance of the sexual revolution: Abortion will eliminate illegitimacy as a social problem? Divorce will be good for children? How do two people getting divorced hurt your marriage? Women’s “liberation” will make relationships between men & woman easier? How does adoption of no-fault divorce affect your marriage.

#4. An overall moral environment that promotes certain behavior, and discourages other behavior is something we intuitively rely on all the time. Laws against theft don’t simply punish thieves and retrieve property – they also discourage theft and promote industry. More cogent examples lay in everything from smocking, to drunk driving to hate crimes laws and projects that target racism. Indeed, the same-sex “marriage” movement itself claims that this innovation will help inculcate an “overall moral environment” that will encourage monogamy, or increase respect for homosexuals, or lessen stigma on the children the acquire.
It’s a strange double standard that presumes so much of one side and then demands discreet and demonstrable” harms of the other.

However: to be fair, two philosophical strains do lend such camps (if not credibility) at least a certain claim to foibles of the modern mind that haunt us all….

We would all do well to understand the philosophical ground we do battle on. In this regard it is useful to be aware of the currents of though that hold the modern mind in a certain thrall.

A good dictionary of philosophical terms may help us undermine calls of “prove it” by revealing there lineage and utter anti-intellectualism..

A good start would be terms such as: Logical positivist, positivism, consequentialist, Materialism,

The following is a quote from an essay called An Opinion About Opinions By Stephen Barr & is an excellent, concise foray into what I point to above.

It is written in response to It’s Not All Relative By Robert T. Miller.
One of the historical (and indeed still very current reasons for traditional marriage is that it helps bridge the gap between the sexes. (often referred to as complementariness)

Not every young man or woman is the Barbi & Ken ideal. Not on the outside or on the inside. They require something to aspire towards. Getting ones sea legs with opposite sex can be a arduous and often lifelong struggle. Strains of misogyny and misandry can manifest themselves and are often played to in today’s “gender wars”.

As the article makes plain, young women in this instance can be lead astray. Rather than slowly conform and be conformed to relations with men; lesbianism can represent surrender in the timeless battle to bring the two haves of this timeless Yin & Yang together.

It doesn’t take much imagination to envision what is already occurring. Sometimes referred to as SLUG’s (a term coined at Smith College) meaning Lesbians Until Graduation. A certain aspree’ de corp’ exists naturally among women and moiré so among the subculture of lesbianism.

The introduction and normalization of same-sex “marriage” can easily lend itself to a culture that fails large numbers of our youth. Rather than doing the hard work of dating and mating (especially in a post sexual revolution environment with few customs and rules) the homosexual “community” offers an easy out. A place of refuge for all those who (at the least feel) that the hurly burly of competition and heartbreak is beyond them.

A very real danger that is already obvious.