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.
C. PAUL SMITH
Attorney at Law
One Church Street, Suite 910
Rockville, Maryland 20850
(301) 762-0033
Fax No.: (301) 762-0285
March 4, 2008
Chairman Joseph Vallario and
House Judiciary Committee, Room 101
Lowe House Office Building
Annapolis, MD 21401
Re: House Bill 1345 and related “marriage” bills
Dear Chairman Vallario and Members:
I am submitting this to supplement the letter (with summary) and the oral comments I made to your committee on February 28th. These comments are to address this issue:
If the Legislature passes measures to recognize gay partnerships as “civil unions,”
“domestic partnerships” or “marriages” will this adversely impact traditional
marriage?
For the reasons given below, the answer to this question is YES!
If the State were to recognize gay partnerships as either “civil unions,” “domestic partnerships,” or “marriages,” this would significantly undermine the State policy to promote traditional marriage as the preferred relationship for the bearing and rearing of children. The traditional policy would be undermined because the State would effectively be saying that there is no preferred relationship for the bearing and rearing of children.
The purpose of having a state policy to promote traditional marriage is to set up a legal system and laws to encourage child-bearing to occur within the bonds of marriage between a man and a woman. The purpose of such a state policy is also to discourage the birth of children outside the bonds of marriage. If the State were to bestow the same benefits of marriage on any and all couples who have guardianship of a child, this will effectively repeal the state policy to promote marriage. There is no way around this. (See attached, one-page of excerpts from the Brief of James Q. Wilson, et al.)
It may be tempting to approach this from the point of view of a particular child or children. Under this approach, if the Legislature were to say: We will bestow on whatever partners who have children the same benefits of a married couple, this would eliminate any incentive to be married before having children. At first glance, this approach would appear to give the same legal benefits to every child. But that is not what will happen. This approach would discourage marriage and would discourage advance planning for children; it would promote after-the-fact, after-birth planning for children, and would not encourage any type of parental relationship as the more desirable one for children. The predictable effect would be that there would be more and more children that would be raised in relationships that are shown to be less advantageous for children than that of a married husband and wife.
Thus, if the Legislature, out of a desire to help the few children being raised by gay parents, passes a law that recognizes gay marriages, then the Legislature will put in motion the measures that will cause many times more children to be adversely affected because they are denied the opportunity to be raised by their own mothers and fathers.
Even if the State were to somehow confer on gay partnerships all the legal benefits of a marriage, this will not guarantee that it would eliminate the ostracism of children. Even if a gay partnership were given the title “marriage,” it would still, obviously be a “gay marriage.” There will be no hiding of the fact that John has two “moms” or two “dads.” Much of society still regard gay relationships as morally wrong. This societal attitude will not be changed by legislative fiat. The Legislature cannot pass a law that will make people think that gay relationships are either right or wrong. Thus, if the Legislature were to confer the benefits of “marriage” on gay partnerships, then these results would follow: (1) the partners would get additional rights and benefits; but (2) the children of such partnerships would continue to get the adverse fallout from the partners’ relationship.
Studies show that children raised by gay partners have significantly higher risks of problems—including physical health, emotional and mental problems, and substance abuse. (The summary I previously submitted gives the reference to such studies.) Conversely, children raised by a father and a mother tend to be healthier, wealthier and happier. It’s not enough to raise a child to read well, to do mathematics well, and to perform well academically. Children also need to learn how to live as heterosexuals; they need to learn how to relate to men and to women; they need to learn how to be a good father or a good mother; they need to learn the differences and complementary qualities of the two sexes.
One of the arguments made for the recognition of gay marriage is the request of the gay couples to obtain for themselves the same rights as married couples. This argument is typically couched in terms of correcting their denial of Equal Rights. This argument was one of the principal arguments addressed by the Court of Appeals recently in Conaway v. Deane. The Court dismissed this argument as a misinterpretation of the application and meaning of Equal Rights under the Constitution. Nevertheless, the State can bestow such rights if it so chooses. But for those who urge the passage of laws to recognize gay marriage in order to secure for themselves legal benefits for their intimate relationships—I suggest that this should not be the focal point of concern. The most important issue is “What is best for the children?” That is the issue that should be controlling, not the question of what special rights to bestow on partners. The best interests of children and society were the bases for establishing state control of marriage in the first place. And that should continue to be the point of focus.
The increases in divorces, out-of-wedlock births, and single-parent households during the last 40 years certainly indicate that marriage and the family are being marginalized in our society. But it does not follow that the State should therefore abandon and scrap marriage. On the contrary, these increased problems have been caused by a departure from mother and father parenting; and the negative trend could be reversed by a return to traditional mother and father parenting. It would not be best for children to abandon the state policy to encourage traditional marriage; it would be better for the state to reaffirm its commitment to traditional marriage as best for the children and for the State.
Sweden, Norway and Denmark have had something close to same-sex marriage for over ten years, and according to one analyst, this has undermined the institution of marriage. (See, Stanley Kurtz, “The End of Marriage in Scandinavia; the conservative case for same-sex marriage collapses.” The Weekly Standard, Feb. 2, 2004, Vol. 9, Issue 20.) Kurtz reported that the out-of-wedlock birth rates have jumped from 39% to 50% in Norway and from 47% to55% in Sweden. In Denmark the rate dropped slightly, from 46% to 45%, but “about 60% of first born children in Denmark now have unmarried parents (Kurtz, p. 2). (I am sending a copy of this article to Chairman Vallario.)
Those gay couples who seek to legalize same-sex marriage have often sought to use the children to make the case that the State should recognize same-sex marriage. The sympathetic appeal of this argument cannot be denied. Especially, when the gay couples send the children over whom they have guardianship before this Committee to tell of the ostracism they feel because their “parents” aren’t married. The plight of these children is indeed heart-wrenching. But their “parents” knowingly and with planning and calculation brought the children into their gay relationships. I have great concerns for these children. But to pass laws that will encourage more children to be raised by gay parents will not help the situation; rather it will most likely cause more children to have problems.
Without fail, the gay couples take the implicit (and sometimes explicit) position that they were born that way or that they cannot change. It seems to be politically correct to embrace this point of view, but the science does not support this position. There is no scientific evidence that homosexuality is innate; there is abundant evidence that homosexuality is affected by environment, conduct and choices; and there is undeniable evidence that some homosexuals have changed. I recognize that what I said irritates and angers many gays. But I would suggest that it would be best for the Legislature to pay closer attention to the legitimate scientific studies on the issue, rather than to be manipulated by the anecdotal testimony that is given and repeated almost every time these issues come before the Legislature.
If the Legislature heeds the siren cries of those who approach this marriage debate as an Equal Rights issue, then the Legislature is likely to make the serious mistake of undermining and destroying marriage. Maryland public policy has promoted and preferred marriage for over two hundred years.
In conclusion, if the State were to recognize gay partnerships as either “civil unions,” “domestic partnerships,” or “marriages,” then the State would be repudiating the policy and preference it has embraced for over two hundred years that it is best for children to be raised by their two parents—the mother and the father. The State cannot both give gay partnerships the benefits of marriage and at the same time continue to promote traditional marriage as the best social unit for the rearing of children. For the reasons stated above, it would be best for the State to strengthen its endorsement of traditional marriage by amending the State Constitution to provide that marriage in this state is only between a man and a woman.
Respectfully submitted,
C. Paul Smith
Encl.
Excerpts from Brief of James Q. Wilson, et al., on the value of traditional marriage for society—
The philosophical and legal bases for a state to pass laws to promote traditional marriage (between a man and a woman) as the preferred social unit for the bearing and rearing of children are stated succinctly in one of the Amici Curiae briefs that was filed in the case of Conaway v. Deane:
Marriage has a unique and indispensable social purpose: creating families in which children will be known and loved by their own mother and father. . . .
Virtually every know human society has recognized the need for a public institution to regulate the procreative consequences of sexual attraction between men and women, both because reproduction is a necessary task, and because the alternative to some form of successful social regulation is fatherless children who suffer serious harms themselves and pose substantial burdens and dangers to society.
The scientific evidence strongly suggests the prime way marriage benefits children is not by bestowing a set of legal benefits (transferable to other family forms) but by increasing the likelihood that children will be born to and raised by their own mother and father. The vast majority of children born to a married couple begin life with their own mother and father committed to jointly caring for them. Only a minority of children in other kinds of sexual unions do so. Marriage serves many individual needs, but this is its most unique and irreplaceable social function: encouraging men and women to procreate responsibly. As a matter of historical record, marriage is not rooted in animus towards gay[s] and lesbians, but is a classification that responds to real and enduring human realities: only opposite-sex unions can both create the next generation and connect those children to the mother and father who made them.
[W]hen the connection between marriage and procreation weakens, many children suffer, and so do the communities faced with higher rates of poverty, crime, juvenile delinquency, welfare dependency, child abuse, unwed teen motherhood, infant
mortality, mental illness, high school dropouts and other education failures.
[Emphasis added.]
Same-sex marriage would strip from the law of Maryland the one feature of marriage that has been virtually universal throughout human history. It [would] put[] law and government in the position of educating the next generation that: (1) Any two committed adults are just as good as a mother and father, when it comes to raising kids; and/or (2) Marriage has little or nothing to do with children; it is primarily about adult needs for intimacy. Such a dramatic shift in the legal meaning of marriage is likely to have real social consequences.
(Brief Amici Curiae of James Q. Wilson, et al., Legal and Family Scholars, in Support of Defendants-Appellants, pp. 2-3. Frank Conaway, et al., v. Gitanjali Deane, et al, in the Court of Appeals of Maryland, September Term, 2006, Case No. 44.) The studies that provide the support for these conclusions in contained in the 50-page brief, a copy of which is being furnished to Chairman Vallario.
C. PAUL SMITH
Attorney at Law
One Church Street, Suite 910
Rockville, Maryland 20850
(301) 762-0033
FAX NO.: (301) 762-0285
February 28, 2008
House Judiciary Committee
Maryland House of Delegates
Lowe Office Building
Annapolis, MD 21401
Re: House Bill 1345
Maryland’s Marriage Protection Act
Dear Committee Members:
I am a husband, a father and a grandfather. I reside in Frederick, Maryland, where I am currently one of the city’s Aldermen. For over 35 years I have worked with youth as a parent, a baseball and basketball coach, a scoutmaster, the bishop of a church congregation, and in other capacities as well.
I am writing in support of House Bill 1345, which would establish a state referendum in November for the voters to determine whether to amend the State Constitution to provide that in Maryland marriage is only between a man and a woman. This is not an anti-gay bill. It is a pro-child and pro-marriage bill. The bestowal of benefits on husbands and wives through Maryland marriage laws does not punish those who are not married. This bill is part of an important state policy to promote the traditional family as the preferred one for the bearing and rearing of children. I urge the passage of House Bill 1345.
1. Resolving the issue by referendum. The provision in the bill to resolve this sensitive social issue by a state referendum is an excellent idea. The referendum approach to the issue is appropriate for an amendment to our Constitution on a matter of such great importance.
2. Defining marriage as only between a man and a woman will strengthen families. Although the bill only calls for a referendum on the issue, its purpose is to achieve an amendment to our Constitution that does limit marriage to a relationship only between a man and a woman. For the reasons stated below, I believe that this would be a desirable improvement in our Constitution.
First, although our state law (Section 2-201 of the Family Law Article of the Code of Maryland) currently provides that marriage is only between a man and a woman, by making this same provision a part of the Constitution would make the restriction stronger, and would be a protection to and promotion of marriage and of strong families.
Second, the amendment would be a strong public policy statement that Maryland promotes and encourages traditional marriage as the best relationship for the bearing and rearing of children in the state. This is a policy that affects the vast majority of the people in the state. It
is a policy that has been a part of Maryland law for over 200 years—a policy that discourages people from having sexual relations outside of marriage, and encourages couples to commit to love and care for one another in a legal (and often at the same time a religious) ceremony before beginning sexual relations with a partner. This is a good and wise standard. It is a policy that bestows certain legal benefits upon the married partners. All of this promotes marriage as the fundamental unit of society for the rearing of children, and to provide for the health, support, safety and well-being of people in the state. During the last 50 years, the increased incidences of drug use, alcoholism, crime, welfare needs, and various health problems can all be tied to the weakening of the family and a decrease in the number of families having both a father and a mother in the home. The proposed bill is a simple step that reinforces the important policy that our forefathers recognized when they first enacted marriage laws.
Third, scientific studies show that the traditional marriage relationship is best for the rearing of children. Most people believe that this is true, but many are not aware of the scientific studies that support this cause-effect relationship. Attached is a four-page article that I recently prepared and published in Constitutional Law Updates, October, 2007, which gives some of the primary studies that support this conclusion. I am aware that you will be (or may already have been) provided with materials that seem to contradict this. But if you wish to become fully informed about the scientific studies on this issue, then you should consider the books and studies referenced in the attachment. An honest scientific review of this issue will demonstrate that the superiority of traditional marriage for rearing children is borne out conclusively by the studies.
Fourth, a state has the right to prefer and promote one type of relationship for the bearing and raising of children in the state. As the Court of Appeals recently held in Conaway v. Deane (2007), as long as there is a rational basis for the state to promote traditional marriage, it may properly do so. The Court went on to find that such a basis does exist. There will always be some families without both a father and a mother. But the existence of such situations does not diminish the need and the importance of establishing a state policy that promotes traditional marriage as the best and preferred relationship for the rearing of children. State laws set state policies. And House Bill 1345 would help set the policy that this state wishes to encourage traditional families, with both a mother and a father, for the rearing of children.
Fifth, that part of the bill that would not recognize civil unions and domestic partnerships is an important and desirable part of this bill because the giving of these relationships the same
legal benefits as marriage would ultimately undermine the state policy to promote and prefer traditional marriage. This part of the bill does discriminate between the preferred, traditional marriage relationship and other relationships. But this differentiation is necessary in order for the state to have a policy that promotes the best interests of the children as a whole. Not only is there a rational basis for this disparate treatment, but the overwhelming evidence from scientific studies supports the state’s having a policy that encourages traditional marriage as the best relationship for raising children in the state. This preference is not a punitive act against other relationships, rather it is an essential part of having a policy that prefers one relationship over others. The proposals before the Legislature to recognize civil unions and domestic partnerships are merely back-door attempts to eliminate the preference that Maryland law has long given to traditional marriage. The proposals to recognize civil unions and domestic partnerships are back-door attempts to redefine marriage. The effect of recognizing civil unions and/or domestic partnerships would be to repudiate traditional marriage as the best and preferred relationship. State law cannot be all things to all people; either it must make traditional marriage the preferred family relationship or not. If the State were to establish a preference for traditional marriage and to recognize civil unions and domestic partnership, then the State would be taking inconsistent positions. If the State chooses to continue to prefer and promote traditional marriage over other relationships, then it may do so, and it should do so. But the State cannot do both, for the bestowal of special legal rights on other relationships undermines the state effort to establish a policy and preference for traditional marriage as the best relationship for the bearing and rearing of children.
Thank you for your consideration of my comments.
Very truly yours,
C. Paul Smith
Encl
Friday, March 21, 2008
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