New stuff

“The majority of the court held that sexual orientation is not a suspect class, that there is no scientific consensus that orientation is immutable, that marriage does not discriminate based on gender, that there is no fundamental right to same-sex marriage, that laws defining marriage as a union of husband and wife are substantially different from those banning interracial marriage, and that the historic link between marriage and procreation justifies the state's definition of marriage as a union of husband and wife.”

SSM [same-sex marriage] has lost in every state high court to consider the issue since the stunning success in Goodridge in Massachusetts in 2003... When you consider that SSM legal advocates have carefully chosen the most sympathetic venues since Goodridge, this record of losses is especially significant. It means that strong anti-SSM precedents are being created in the friendliest states, making pro-SSM rulings in other states even more unlikely in the near future... If SSM is to advance much in the near future, it will probably have to come legislatively.


http://www.nytimes.com/2007/09/29/opinion/29wolfers.html?_r=2&ex=1348804800&en=1f2e335d9590c5bf&ei=5090&partner=rssuserland&emc=rss&oref=slogin&oref=slogin

http://www.chicagotribune.com/news/local/northwest/chi-0923_multisep23,1,3340366.story?ctrack=1&cset=true

http://afp.google.com/article/ALeqM5juVbhPK68Fyi9JaXnZ_CxuLP3zuA

http://www.nytimes.com/2007/09/20/us/20marriage.html?_r=1&adxnnl=1&oref=slogin&adxnnlx=1190291659-Zd1qIHBRCg8bmC+uGoqRJQ

http://www.washingtonpost.com/wp-dyn/content/discussion/2007/09/18/DI2007091801050.html


1. Social science literature demonstrates the children who are reared by a married natural mother and father have more positive outcomes in a wide variety of important factors compared to children in other adequately studied family structures.

2. "Children reared in a stable married natural family are likely to do better on various measures of educational attainment; exhibit fewer behavioral problems, including conduct disorders, alcohol and drug abuse, and juvenile delinquency; will not be as likely to engage in criminal behavior as adults; engage in sexual relations as teenagers, and to experience an unwed pregnancy; have a decreased risk for mental/emotional illness; have a decreased risk of physical illness and infant mortality; experience decreased risk of suicide; have a greater life expectancy; likely to benefit from high levels of parental investment, commitment, and closeness (particularly with their fathers); be victims of physical and sexual abuse; experience higher levels of family stability as adults, including a decreased divorce risk."

http://www.nydailynews.com/opinions/2007/10/07/2007-10-07_rebuild_the_american_family_starting_wit.html


Maryland Decision
The Court of Appeals of Maryland (the state’s highest court) today issued a decision in a case brought by nine same-sex couples and others challenging the state’s definition of marriage. A trial court had ruled that the marriage law was a form of sex discrimination but today’s decision reversed that ruling. The majority in today’s decision consisted of four justices, two of whom had retired but were recalled to participate in the decision.

As to the sex discrimination argument, today’s majority said that the state’s Equal Rights Amendment was intended only to end discrimination against men or women as a class and “to remedy the long history of subordination of women in this country.” Since the marriage laws “do not separate men and women into discrete classes for the purpose of granting to one class of persons benefits at the expense of the other class” and the statute does not “place men and women on an uneven playing field” it is not sex discrimination.

The court then ruled on whether a sexual orientation classification should require the court to subject the marriage law to more exacting scrutiny. The court noted the prejudice and legal disabilities experienced by gays and lesbians but pointed out that they are not politically powerless, having experienced a number of legislative gains in past years. The court also said it could not assume “that gay, lesbian, and bisexual persons display readily recognizable, immutable characteristics that define the group” based on “the scientific and sociological evidence currently available to the public.”

The majority next rejected the idea “that a right to same-sex marriage has taken hold to the point that it is implicit in the concept of ordered liberty or deeply rooted in history and tradition of Maryland.” In fact, the court noted that previous cases recognizing a fundamental right to marry “infer that the right to marry enjoys its fundamental status due to the male-female nature of the relationship and/or the attendant link to fostering procreation of our species.” In fact, the court said that virtually all of the cases “indicate[] as the basis for the conclusion the institution’s inextricable link to procreation, which necessarily and biologically involves participation (in ways either intimate or remote) by a man and a woman.”

In terms of the justifications for the current marriage law, the court ruled “fostering procreation is a legitimate government interest” and the “‘inextricable link’ between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is that relationship that is capable of producing biological offspring of both members (advances in reproductive technologies notwithstanding).” The court held “the fundamental right to marriage and its ensuing benefits are conferred on opposite-sex couples not because of a distinction between whether various opposite-sex couples actually procreate, but rather because of the possibility of procreation.”

One justice agreed that the definition of marriage might be justifiable but would have endorsed the New Jersey Supreme Court’s decision that the benefits of marriage must be given to same-sex couples.

Two justices dissented, the first endorsing an absolute reading of the state Equal Rights Amendment (if sex is even mentioned, the law should be presumed unconstitutional) and the second endorsing a dissenting opinion in the New York marriage case.

Pew Poll on Gay Marriage: Opposition High and Holding
A new Pew Poll on SSM, released Sept. 6 (and somewhat buried under the lead which is about religion and presidential candidates:
"Attitudes toward gay marriage have remained virtually unchanged since July 2006, with 36% of Americans favoring it and 55% expressing opposition to allowing gays and lesbians to marry legally. . . . Support for gay marriage is highest among liberal Democrats (71%) and lowest among conservative Republicans (11%), with other ideological and partisan groups falling in between.

Among religious groups, evangelical Protestants overwhelmingly oppose gay marriage, including 81% of white evangelicals and 79% of black evangelicals. A large proportion in both groups – 55% of white evangelicals and 48% of black evangelicals – say they strongly oppose gay marriage. White mainline Protestants and Catholics are more evenly divided on the issue. The religiously unaffiliated are the only group in which a majority (60%) expresses support for gay marriage. . ."

http://people-press.org/reports/display.php3?ReportID=353

Doug Kmiec on the Iowa SSM Ruling
Prof.Kmiec is at Pepperdine:
"When the Iowa trial court struck down Iowa's Defense of Marriage Act, Mitt Romney was the only presidential candidate voice to be heard understanding the ruling for what it was: "yet another example of an activist court and unelected judges trying to redefine marriage and disregard the will of the people as expressed through the Iowa Defense of Marriage Act." It is often complained that the words judicial activism are used frequently and without definition. There is some truth to that complaint, but a close review of the ruling illustrates the sum and substance of that unconstitutional disease.

First of all, one of the aspects of the case that would trouble any open-minded reader is the extent to which the court rebuffed expert testimony in behalf of traditional marriage. Testimony from the founding director of the McGill center for medicine ethics and the law; testimony from Dr. Paul Nathanson a senior researcher at McGill University; testimony from Dr. Steven Rhoads, a well-respected author of important books on gender roles and the healthy development of children and related matters; and finally the testimony of Dr. Allan Carlson the president of the Howard Center for family religion and society were all refused by the court. The court had the temerity to indicate that these individuals were "not qualified" to testify as they lacked "scientific technical, and other specialized knowledge." By contrast, the court swung the door open widely for experts to opine upon anti-gay sentiment.

Notwithstanding this one-sided appraisal of offered evidence, the court noted that those advocating for same-sex marriage did not dispute, and frankly offered no evidence to contradict, two salient findings:

1. "Social science literature demonstrates the children who are reared by a married mother and father have more positive outcomes in a wide variety of important factors compared to children in other adequately studied family structures..." and

2. "Children reared in a stable married family are likely to do better on various measures of educational attainment; exhibit fewer behavioral problems, including conduct disorders, alcohol and drug abuse, and juvenile delinquency; will not be as likely to engage in criminal behavior as adults; engage in sexual relations as teenagers, and to experience an unwed pregnancy; have a decreased risk for mental/emotional illness; have a decreased risk of physical illness and infant mortality; experience decreased risk of suicide; have a greater life expectancy; likely to benefit from high levels of parental investment, commitment, and closeness (particularly with their fathers); be victims of physical and sexual abuse; experience higher levels of family stability as adults, including a decreased divorce risk."