From: FORMNATL@aol.com Date: Sun, 20 Jul 1997 01:01:24 -0400 (EDT) Subject: LAW REVIEW SUMMARY Law Review Summary (revised 7/97) PUBLIC POLICY/EVASION/CONFLICT OF LAWS "The outcome of [majority vs. minority] hostilities cannot legitimately rest on majority rule; judicial deference to majoritarianism in the context of polarized politics is inconsistent with the original aspirations of the founders." [1] "'[Restricting] the Court. . .to declaring an existing national consensus. . .would charge the Court with a function to which it is, of all our institutions, least suited. . .The Court should declare as law only such principles as will--in time, but in a rather foreseeable future--gain general assent.' [2] The Supreme Court assumed this role in both Brown v. Board of Education and Loving v. Virginia." [3] ". . .the public policy of a state is not fixed in time but may change as societal changes take place." [4] "The repeal of a state's sodomy statute should also be treated as a manifestation of a state's public policy." [5] "Because of the universal acceptance of the rule favoring the validation of marriages and the important policies promoted by that rule, courts should require their state legislatures to state more than a mere preference for traditional social arrangements before they hold that their marriage statute demonstrates a strong public policy against recognizing the homosexual marriages of a sister state." [6] "The comments to the Uniform Marriage and Divorce Act indicate that section 210 was intended to validate marriages, even if the parties would not have been allowed to marry in their domicile. The comment also states that section 210 'expressly fails to incorporate the "strong public policy" exception to the Restatement [Second] and hence may change the law in some jurisdictions. This section will preclude invalidation of many marriages which would have been invalidated in the past.'" [7] "Couples living in. . .marriage evasion statute states who intend to travel to Hawaii to enter a same-sex marriage may find their marriages subject to challenge under the evasion statutes. [For those states which do not] expressly prohibit same-sex marriage, however, it is likely that their courts would be bound to follow earlier precedent requiring an express prohibition in the positive law of the state before the evasion statute's language would become relevant. If that is the case, same-sex marriage should be upheld as valid." [8] "The majority approach, however, considers even a blatant evasion of forum law irrelevant in determining the validity of a marriage." [9] "Except for states which have expressly forbidden same-sex marriage, courts should not find a strong public policy from the absence of a statute permitting same-sex marriage." [10] "The court [in Baker v. Nelson, an early (lost) gay marriage case] decided that because marriage laws were not intended specifically to authorize same-sex marriages, such marriages were necessarily prohibited. This form of reasoning directly contradicts the foundation principle that in a 'free' society, anything not prohibited is permitted; it is only in 'command' societies that the reverse is considered true, that anything not specifically permitted is prohibited." [11] "The times when a court does invalidate a marriage are: (1) to protect (a) the mentally incompetent, (b) the young, and (c) close family members; and (2) to encourage participation in and respect for formalized marriage procedures. Same-sex marriages do not follow any pattern of the situations when a court has held a marriage from another state to be invalid." [12] ". . .the validity of the marriage can be negated only by applying the laws of the states of celebration or domicile at the time of the marriage." [13] (If a couple travels from state A to marry in state B, and then later moves to state C, state C has no basis for invalidating that marriage.) "It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." [14] "One principle to be weighed is 'the choice of the law reflecting an 'emerging' policy over one embodying a 'regressive' policy." [15] Justice Oliver Wendell Holmes: "I think it most important to remember whenever a doubtful case arises, with certain analogies on one side and other analogies on the other, that what is really before us is a conflict between two social desires, each of which seeks to extend its dominion over the case, and which cannot both have their way. . .Where there is doubt the simple tool of logic does not suffice, and even if it is disguised and unconscious, the judges are called on to exercise the sovereign prerogative of choice." [16] "In sum, there are three competing interests at stake. Each independent state possesses an interest in defining marriages within its borders, couples possess an interest in their own marriages, and Hawaii [or another marriage state] possesses an interest that derives from the couples' interests. When one analyzes these three interests, one will see that the latter two interests clearly outweigh the independents states' interest in defining marriages within their borders, and granting full faith and credit in this area is not only proper, but necessary to fulfill the marital expectations of couples throughout the nation." [17] MARRIAGE DEFINITIONAL ISSUES "Just as a court cannot simply cite the fact that a legislature had passed a particular statute to establish the statute's constitutionality, a court cannot simply cite a definition to establish a state's constitutionality, unless that definition has independent and significant weight." Neither the fact that a legislature passed a statute nor the fact that a statute incorporates a particular definition saves the statute from constitutional infirmity. . .When determining the constitutionality of a statute, courts must resist the tendency to give great deference to definitions. Otherwise, legislatures may be tempted to take advantage of this judicial tendency to protect their enactments by creating definitions that bring about the desired effects. For example, suppose that a legislature were to include within its definition of family the following condition: 'No family shall contain more than two members not related by blood.' While a law prohibiting most adoptions by married couples would not survive constitutional scrutiny, this hypothetical statute could not be struck down if definitions were somehow exempted from judicial scrutiny, since this statute would preclude adoptions definitionally rather than merely prohibit them statutorily." [18] "An appeal to legal definitions is simply question-begging, while an appeal to nonlegal definitions may support the opposite position." [19] "The fact that a definition is derived from the common law, rather than from an associated statutory provision, does not immunize it from Constitutional scrutiny." [20] "Courts must stop pretending that they can avoid substantive positions by citing spurious definitional bars, must stop reinventing case law to substantially limit what qualifies as a fundamental interest, and must stop exaggerating particular state interests while turning a blind eye to others in order to justify what cannot in good faith be justified." [21] ". . .Those legislatures that reject same-sex marriage are themselves implicitly indicating that they do not believe that same-sex marriages are definitionally precluded--if such unions were definitionally precluded, pronouncements declaring them void would be unnecessary. By indicating that they understand that such marriages are possible, the legislatures imply that they are refusing to recognize such unions for reasons of public policy rather than for reasons of definitional preclusion." [22] ". . .it may be argued that the original framers of the United States Constitution did not intend to exclude a woman from being President of the United States when they referred to the office of the President only in masculine terms. The fact is that they failed to consider the possibility of a woman becoming President, for at that time in history women did not even possess the right to vote. It cannot definitely be said that the intent to exclude a class of persons may be implied from the total lack of their consideration in the previous example any more strongly than it can be said in the latter. Had the framers of the United States Constitution,. . .in fact, anticipated such possibilities, they would, undeniably, have expressly prohibited such. . .It cannot be that a woman is prohibited from becoming President of the United States. Are homosexuals, then, to be denied the privilege of entering into a valid. . .marriage simply because the possibility of such a marriage was never considered? The answer to this question is not in the [written law], nor can it irrebutably be supplied under the guise of legislative intent." [23] "If homosexuals can get married because they love each other, why not polygamy? Why not incest?. . .People who use this line of attack seem to regard it as a trump card, a devastating objection. . .The hidden assumption of the argument which brackets gay marriage with polygamous or incestuous marriage is that homosexuals want the right to marry anybody they fall for. But of course, heterosexuals are currently denied that right. They cannot marry their immediate family or all their sex partners. What homosexuals are asking for is the right to marry, not anybody they love, but somebody they love, which is not at all the same thing. . .Heterosexuals can now marry any of millions of people; even if they can't marry their parents or siblings, they have plenty of choice. Homosexuals want the same freedom, subject to the same restrictions. Currently, however, they have zero marital choice. . .Do homosexuals actual exist? I think so. . .By contrast, no serious person claims there are people constitutively attracted only to relatives, or to groups rather than individuals. Anyone who can love two women can also love one of them. . .Homosexuals currently have no marital option at all. A demand for polygamous or incestuous marriage is thus frivolous in a way that the demand for gay marriage is not." [24] MARRIAGE AS A FUNDAMENTAL RIGHT/EQUAL PROTECTION "As the Supreme Court has noted 'The Freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness.' Yet, the freedom to marry is not a vital right essential only to the happiness of heterosexuals; it is vital to the happiness of homosexuals as well. The Court has recognized that individuals cannot be denied the essential elements of their happiness as long as those essential elements do not harm others." [25] "It strains credibility. . .to suggest that prohibiting a homosexual from marrying someone of the same sex is not a significant interference with the decision to enter into the marital relationship." [26] "A 'basic' civil right would be one shared by all. A lesbian's need for companionship and intimacy is just as strong as a straight man's. If marriage is denied to a lesbian or a gay man, then clearly marriage is not a 'basic civil right of man' [27], but a basic civil right of 'straight man'. Logically, then, gay people are marginalized as not having the same basic needs or rights as other humans; they are not persons. . ." [28] ". . .the right to marry requires more than that all citizens be given the opportunity to marry, which would not be abridged by the anti-miscegenation statute invalidated by Loving." [29] "If the Court is going to remain within its tradition of recognizing the fundamental rights to marry and to have a family and of only recognizing sexual rights as something instrumentally connected to those rights, the Court will have to recognize homosexual marriages before it can recognize a right to homosexual sodomy." [30] "The Georgia Statute upheld in Bowers burdened only sexual interests and therefore needed to survive only rational basis scrutiny. In the case of same-sex marriage, state law burdens the individual's fundamental rights to marriage and family. State interests held sufficient in Bowers to uphold Georgia's sodomy statute do not necessarily justify marriage laws that are subject to strict scrutiny." [31] "In finding that the fundamental right to marry is restricted to opposite-sex couples, the Hawaii Supreme Court made the same error that the United States Supreme Court made in Bowers v. Hardwick. Just as the Bowers Court erred by focusing on the existence of a fundamental right to homosexual sodomy, instead of recognizing a fundamental right to privacy in one's choice of sexual partners, so too did the Baehr court err by focusing on the existence of a fundamental right to same-sex marriage, instead of applying the already recognized fundamental right to marry to same-sex couples." [32] "In Zablocki v. Redhail, the Court referred to the fundamental right of marriage as the 'right to marry,' not a right to exist. Unquestionably, the Court was speaking of the rights of the individual and not the rights of couples or of particular types of couples. The fundamental right to marry, therefore, belongs to individuals, not couples." [33] "Ironically, [U.S. Supreme Court] Justice Powell later admitted before a group of law students at New York University that he had probably made a mistake in concurring with the majority in Bowers, a vote which would have changed the outcome of the [precedent-setting sodomy] case." [34] "The 'tradition and collective conscience' test [of Due Process/Fundamental Rights analysis- as (mis-)applied in Bowers] begs the questions. If homosexual marriage was an aspect of our cultural tradition, then it would be an established institution not in need of adjudication. It is implicitly impossible for liberty and fundamental rights to evolve if they are not found in the tradition of our people. Gay people should be afforded the same liberation of their civil rights as other minorities within our culture. The evolution of their civil rights should not be dependent upon a test by which the conclusion precedes its analysis." [35] ". . .of the 'traditions and collective conscience' standard is to be used, it must not be used selectively on the side of homophobia." [36] "Same-sex couples are the only adults, other than those who violate some additional statutory proscription, who are not freely permitted to marry the partner of their choice." [37] ". . .the right to marry is the right to join in marriage with the person of one's choice. . .It is a fundamental right of free men." [38] "The fourteenth amendment. . .requires that all citizens 'be represented in the sense that their interests are not to be left out of account or valued negatively in the lawmaking process'." [39] ". . .none of the classes already recognized as deserving protection meets the standards offered to establish that sexual orientation does not deserve heightened judicial protection from invidious discrimination. . .Some courts and commentators argue that there is no fundamental right to marry a same-sex partner. The test cited to establish that thesis, however, is not the appropriate test, since it might also be used to establish that there are no fundamental rights to contraception, abortion, or interracial marriage." [40] ". . .the [Supreme] Court has emphasized that '[c]are must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions." [41] "If courts continue to uphold intrasexual marriage bans and continue to offer the kinds of kinds of analyses thus far offered to justify such policies, the implications for domestic relations jurisprudence specifically, and our legal system generally, are frightening to contemplate." [42] "Ironically, those who most favor limiting government intrusion into our private lives may be the same people who most vigorously petition our states to prohibit same-sex marriages." [43] "To call a right 'fundamental,' and then limit it to certain favored groups undermines the weight of that designation." [44] "Constitutional imperatives of the equal protection clause must have priority over the comfortable convenience of the status quo." [45] ". . .the most promising elements for future same-sex marriage litigation are claims based upon equal protection rather than a 'fundamental' right of marriage, and challenges rooted in constitutional, rather than federal, provisions." [46] "The function of the [Equal Protection] Clause is to prohibit unprincipled distributions of resources and opportunities. Distributions are unprincipled when they are not an effort to serve a public value, but reflect the view that it is intrinsically desirable to treat one person better than another." [47] Louis Brandeis and Samuel Warren wrote over a century ago: "That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society." [48] PROCREATION ISSUES "If heterosexuals might adopt a child and thus their inability to have children of their own would not preclude them from having and raising a family, it is surprising that the court is so confident that a homosexual couple could not likewise have and raise a family. . .It is at best disingenuous to hold that than an essential precondition of marriage is that the couple plans to have children, but that the state's requiring only certain people to meet that condition is a mere theoretical imperfection. In any case, no responsible legal authority believes that the desire and willingness to have children is an essential precondition of marriage except in the context of attempting to show why there can be no homosexual marriages." [49] "To cite the existence of antisodomy laws to show why same-sex marriages should not be recognized, and to refuse to strike down laws criminalizing homosexual sodomy because there is '[n]o connection between family, marriage or procreation on the one hand, and homosexual activity on the other,' involves the height of bad faith and hypocrisy." [50] "The state has no compelling interest in encouraging procreation for the sake of the survival of the human race. Empirically, the real danger of human survival is from overpopulation, not underpopulation." [51] "In Griswold v. Connecticut, the Supreme Court established the right of married couples to use contraception, and hence to engage in non-procreative sex." [52] "Griswold and Eisenstadt illustrate the illogic of granting reproductive freedom to all individuals while simultaneously restricting homosexuals from marrying based upon their presumed inability to procreate." [53] "If the ability or desire to procreate is not a prerequisite for the marriage of heterosexuals there is no rational reason why it should be one for homosexuals." [54] ". . .a procreation requirement for marriage is selectively invoked and never enforced." [55] ". . .adoption by a biological parent's homosexual partner provides a child with emotional security. However, denying the parents the right to marry sends a message to the child that something is wrong with the child's family; arguably this must negatively affect the child's emotional security. Therefore, if the state truly has an interest in protecting children, same sex marriages would be permitted. . ." [56] ". . .Courts must still address the constitutionality of the same-sex marriage ban. Courts addressing this question have suggested that the fundamental right to marry lies in its allowing individuals to raise their own biological children. This misinterpretation of the relevant case law involves a major reinterpretation of domestic relations jurisprudence." [57] "The Court is unwilling to allow states to adversely affect children for the alleged sins of their parents--the Court has 'expressly considered and rejected the argument that a State may attempt to influence the actions of men and women by imposing sanctions on the children born of their illegitimate relationships.' Yet, same-sex marriage bans may well impose hardships on the children of gays and lesbians." [58] RACE, OTHER MARRIAGE EXCLUSIONS, ANALOGIES The alleged "fact" that mixed-race couples are unable to procreate was used to deny them the right to marry, as it i now used to deny same-sex couples: "They [interracial] couples cannot possibly have any progeny, and such a fact sufficiently justifies those laws which forbid the intermarriage. . ." [59] "Opponents of same-sex marriage claim that same-sex couples cannot procreate whereas opponents of different-race marriage. . .admitted that different-race couples can procreate but lamented the consequences. Both sets of opponents essentialize marriage around procreation and then exclude couples who cannot procreate in the desired way." [60] ". . .most commentators and judges seem to underappreciate the striking parallels between the current refusal to recognize same-sex marriages and the formal refusal to recognize interracial marriages. Many denied that the latter were marriages at all, claiming that such unions were unnatural, immoral, and demeaning to the institution of marriage." [61] In Zablocki v. Redhail (434 U.S. 374 (1978)), the U.S. Supreme Court found that a Wisconsin statute prohibiting indigents who had not met child support obligations from remarrying was unconstitutional, because marriage is a fundamental right (and the state couldn't meet the heightened scrutiny therefore imposed). The court ruled that the state's power to regulate marriage doesn't include the ability to exclude certain people from its definition. ". . .Justice Marshall's invocation of equal protection analysis aptly indicates that the state may not use its power to define marriage in a manner that excludes an identifiable class of persons from marrying." [62] In Loving v. Virginia (388 U.S. 1 (1967)), the U.S. Supreme Court ruled that states may not enact laws prohibiting its citizens from marrying a person of a different race. One commentator criticizes early gay marriage decisions which claimed the issue was a supposed "right to same-sex marriage": "But what if the [Loving] Court had interpreted this as a claim to a 'right to a mixed-race marriage' and then inquired into the pedigree of that narrowly defined right? The result could not have been the same." [63] The heart of the matter is the level of generality assumed in asking the question. This commentator explains and criticizes one conservative approach to this which as been put forth: "The problems with Justice Scalia's 'most specific level' [i.e., "same-sex marriage" as a fundamental right as rather than marriage per se as a fundamental right] approach are, however, legion. One serious objection is that it puts the methodological cart before the fundamental rights horse: It chooses a rule for the putative merit of its rigidity, rather than because it reflects the character of the constitutional rights in question. Moreover, the results of this methodological approach is anything but neutral: It gives the narrowest possible interpretation to fundamental rights by constitutionalizing exceptions to them. Far from cabining judicial discretion, it simply entrenches at the methodological level one Justice's narrow conception of fundamental rights. . .The judicial discretion becomes arbitrary when the 'most specific level' methodology is itself selectively applied in some cases but not in others. In Dean v. District of Columbia (No. 90-13892, slip op. at 3-4 (D.C. Super. Ct. June 2, 1992)), the court expressly rejected the view that this methodology must be applied in all fundamental rights cases yet 'recognize[d] that such a mode of analysis may be useful and appropriate in particular instances,' including the same-sex litigation that was before it. It is difficult to imagine a more naked expression of result-driven jurisprudence than this." [64] "Loving v. Virginia, after all, had invalidated a statute whose premises were equally the product of 'commonsense' and an 'historic institution. . .deeply founded'." [65] "One case, State v. Bell, exemplifies the similarity between [miscegenation] cases and our same-sex couple married in Hawaii. Because they're interracial marriage wasn't considered legal in that state, they were charged with "fornication." [The court wrote in part:] 'Extending the rule to the width asked by the defendant, and we might have in Tennessee the father living with his daughter, the son with the mother, the brother with the sister, in lawful wedlock, because they had formed such relations in a State or country where they were not prohibited. The Turk or Mohammedan, with his numerous wives, may establish his harem at the doors of the capitol, and we are without remedy. Yet none of these are more revolting, more to be avoided, or more unnatural than the case before us.' [66] "It does not take much imagination to envision reading this language applied to a same-sex marriage, celebrated in Hawaii, and challenged in various states. Not until the 1948 case Perez v. Lippold, when the California Supreme Court declared its anti-miscegenation statute to be unconstitutional, did a trend begin toward recognizing the racial discrimination inherent in these statutes. As Justice Traynor noted in Perez: 'A member of any of these races may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable. Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains.'" [67] "Just as interracial couples cannot be made to suffer any legal disadvantage that same-race couples are spared, gay couples cannot be made to suffer any legal disadvantage that heterosexual couples are spared. Lesbians and gay men must be permitted to marry." [68] "Opponents of the legal recognition of same-sex unions often fail to point out that the reasons currently used to establish the inappropriateness/impermissibility of same-sex marriages have been used in the past to establish that same thesis with respect to marriages between members of different races. Interracial marriages were claimed to be immoral, unnatural, and disapproved of by society." [69] "Just as it is clear that antimiscegenation laws were meant to discriminate against one group, it is clear that legislation banning same-sex marriages is intended to discriminate against one group. Indeed, the legislation banning same-sex marriages seems even more invidiously discriminatory than antimiscegenation legislation, since it seeks to prevent a whole class of individuals from marrying the only people to whom they are physically attracted." [70] "Suppose, for example, that certain members of the population were predominately or exclusively physically attracted to members of a different race. Precluding them from intermarrying would induce them to form a couple with the would-be partner without the benefit of marriage, remain single, or marry someone of the correct race while remaining predominately or exclusively attracted to individuals of a different race." [71] "Suppose that people such as Carla like living in blue houses but do not like living in red ones, and that people such as Don like living in red ones but do not like living in blue ones. Suppose further that people like Carla feel that the value of living in a house is diminished when people like Don also live in houses. The state would hardly be justified in passing legislation that required people like Don to either live in blue houses or not to live in houses at all. Carla might point out that people like Don have not been entirely precluded from living in houses, since they can live in blue ones. Further, people like Don have other options; they can choose not to live in houses at all but instead to live in apartments. Carla might further point out that people like Don are not the only ones precluded from living in red houses; people like Carla are also precluded. (Carla might choose not to emphasize that people like her do not like living in red houses anyway.) Of course, people like Carla would not be pleased that people like Don in fact choose to live in blue houses rather than live in apartments, since the value of living in a blue house would be diminished were people like Don to do so. People like Carla would prefer that people like Don not live in houses or, in the best of all possible worlds, simply not be." [72] "It is difficult to understand how the courts considering whether bisexuals, gays, and lesbians comprise a class meriting heightened or strict scrutiny can claim to be judging in good faith when the standards chosen, if applied consistently in the past, would have precluded the recognition of any suspect or quasi-suspect classes. . .When courts claim to apply the appropriate standards but offer an analysis that, if applied generally, would do away with suspect and quasi-suspect classes, the courts undermine confidence both in their decisions and in their integrity generally." [73] SEXUAL ORIENTATION DISCRIMINATION AS SEX DISCRIMINATION ". . .[The] argument, that the ERA would require only that male couples be treated the same as female couples, ignores the fact that the ERA protects individuals, not couples. Therefore, it is the individual's right--to marry a man as a woman is allowed or to marry a woman as a man is allowed--that is at stake." [74] "Similarly, one could argue, failure to issue marriage licenses to same-sex couples denied women the right to marry women--a right that only men would be allowed to exercise--and denied men the right to marry men--again, treating men and women differently." [75] "As a matter of definition, if the same conduct is prohibited or stigmatized when engaged in by a person of one sex, while it is tolerated when engaged in by a person of the other sex, then the party imposing the prohibition or stigma is discriminating on the basis of sex. . .That is what happens whenever gays are discriminated against. If a business fires Ricky, or if the state prosecutes him, because of his sexual activities with Fred, or while these actions would not be taken against Lucy if she did exactly the same things with Fred, then Ricky is being discriminated against because of his sex. If Lucy is permitted to marry Fred, but Ricky may not marry Fred, then. . .Ricky is being discriminated against because of his sex." [76] "Just as proponents of the federal Equal Rights Amendment denied opponents' allegations that sex equality would require legal recognition of gay marriage. . .proponents of the fourteenth amendment denied opponents' allegations that racial equality would require legal recognition of interracial marriage. . ." [77] SAME-SEX RELATIONSHIPS, CHILDREN "Psychologist C.A. Tripp reports that: 'the settled in qualities of the homosexual couple tend to be precisely those which characterize the stable heterosexual relationship. The similarities evidenced in daily life are especially noticeable. The way the partners interact as they engage in conversation, the way casual affection is expressed and minor irritations are dealt with, as well as how visitors are treated, or dinner is served, and myriad other details of everyday life are all more or less indistinguishable. Viewed from this angle, there are clearly more differences between individuals and couples than there are between kinds of couples.'" [78] ". . .the [marriage-related privacy] values emphasized by Justice Douglas in Griswold v. Connecticut, 381 U.S. 479, 486 (1965) include intimacy, harmony, and bilateral loyalty, but not procreation." [79] "Whether or not a jurisdiction [legally recognizes same-sex families], their courts must inevitably deal with the offspring of these unions and must determine rights for support, visitation, inheritance and all the other traditional rights stemming from a heterosexual marriage." [80] "Protecting children from the societal prejudice associated with being raised by a same-sex couple is a more realistic concern. Many of the children of same-sex couples will encounter social prejudice. They will encounter prejudice, however, whether or not their parents legally marry. Legally recognizing the validity of same-sex unions will not add to that prejudice and could very well work to dissipate it." [81] "According to a recent American Bar Association study, eight to ten million children are currently being raised in three million gay households." [82] "How ironic that promiscuity and instability are stereotypes associated with a group in society that has been trying to gain recognition of their stable relationships. And, how ironic it is that a society that embraces these stereotypes will not offer the mechanism, marriage, by which same-sex partners could demonstrate their commitments to each other and to their relationship." [83] "Those who argue that marriage has always been patriarchal and thus always will be make the same historical mistake, in mirror image, as the courts that have essentialized the 'nature' of marriage. There is no 'always has been and ever shall be' truth of marriage." [84] In Braschi v. Stahl Associates, the New York Court of Appeals, in ruling that the surviving same-sex lover was "family" for purposes of rent control succession. It said that a family was defined by: "[T]he exclusivity and longevity of the relationship, the level of emotional and financial commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services. . .[I]t is the totality of the relationship athe parties [that] should, in the final analysis, control." [85] "Heterosexuals rely heavily on an idealized marital tradition when they deny marriage to us, though it reflects neither their experience nor ours." [86] NOTES ENDNOTES******************************** [1]. The Constitution in Conflict, by Robert Burt, quoted in "Marriage, Equal Protection, and New Judicial Federalism: A View from the States," by Lisa Farabee, in Yale Law and Policy Review (14: 237-286 (1996)), pg. 245. [2]. The Least Dangerous Branch, by Alexander Bickel, 1962, pg. 239. [3]. "Marriage, Equal Protection, and New Judicial Federalism: A View from the States," by Lisa Farabee, in Yale Law and Policy Review (14: 237-286 (1996)), pg. 269. [4]. "A Conflict of Laws and Morals: The Choice of Law Implications of Hawaii's Recognition of Same-Sex Marriages," by Joseph Hovermill, in Maryland Law Review, Vol. 53: 458 (1994). [5]. Ibid., pg. 459. [6]. Ibid., pg. 488. [7]. "Same-Sex Marriage and Choice of Law: If We Marry in Hawaii, Are We Still Married When We Return Home?," by Barbara Cox, in Wisconsin Law Review, Vol. 30: 1068 (1994) [Footnotes omitted]. [8]. Ibid., pg. 1077. [9]. Hovermill, pg. 463. [10]. Cox, pg. 1100. [11]. "Same-Sex Marriage," by Otis Damslet, in New York Law School Journal of Human Rights, Vol. 10: 565-566 (1993). [12]. "Same-Sex Marriage: The Fundamental Right of Marriage and an Examination of Conflict of Laws and the Full Faith and Credit Clause," by Robert Cordell, in Columbia Human Rights Law Review, Vol. 26: 267-268 (1994). [13]. Legally Wed: Same-Sex Marriage and the Constitution, by Mark Strasser, Cornell University, 1997, pg. 129. [14]. "The Path of the Law," by Oliver Wendell Holmes, in Harvard Law Review, Vol. 10: 457, 469 (1897), quoted in "Same-Sex Marriage," by Otis Damslet, in New York Law School Journal of Human Rights, Vol. 10: 574 (1993). [15]. Cox, pp. 1104-1105. [16]. "Law in Science and Science in Law," in Collected Legal Papers, by Oliver Wendell Holmes, 1920, pg. 239, quoted in "Constitutional Aspects of the Homosexual's Right to a Marriage License," by Arthur Silverstein, in Journal of Family Law, Vol. 12: 634 (1972 73). [17]. "'Til Death Do Us Part: Granting Full Faith and Credit to Marital Status," by Habib Balian, in Southern California Law Review, Vol. 68: 425. [18]. "Family, Definitions, and the Constitution: On the Miscegenation Analogy," by Mark Strasser, in Suffolk University Law Review, Vol. 25: 984-985 (1991) [Footnotes omitted] [Emphases in original]. [19]. Ibid., pg. 989. [20]. "The Necessity for State Recognition of Same-Sex Marriage: Constitutional Requirements and Evolving Notions of Family," by Alissa Friedman, in Berkeley Women's Law Journal, Vol. 3: 151 (1987-88). [21]. "Domestic Relations Jurisprudence and the Great, Slumbering Baehr: On Definitional Preclusion, Equal Protection, and Fundamental Interests," by Mark Strasser, in Fordham Law Review, Vol. 64: 922 (1995). [22]. Ibid., pg. 925. [23]. "Heterosexuality: A Prerequisite to Marriage in Texas," by James Harper and George Clifton, in South Texas Law Journal, Vol. 14: 220-277 (1972-73), pp. 253-254. [24]. "Marrying Somebody," by Jonathan Rauch, in Same-Sex Marriage: Pro and Con, edited by Andrew Sullivan, Vintage, 1997, pp. 285-286. [25]. Strasser ("Family. . ."), pg. 999. [26]. Ibid., pg. 1007. [27]. Skinner v. Oklahoma, 316 U.S. at 541. [28]. "Diving the Priest: A Case Comment on Baehr v. Lewin," by Christopher Keller, in Law and Inequality, Vol. 12: 483-527 (1994), pg. 498. [29]. Friedman, pg. 156. [30]. Strasser ("Family. . ."), pp. 1033-1034. [31]. Friedman, pg. 164. [32]. Cox, pp. 1056-57. [33]. "Same-Sex Marriage--Why Not?," by Christine Jax, in Widener Journal of Public Law, Vol. 4: 467 (1995). [34]. "Society's Ban on Same-Sex Marriages: A 'Fundamental Right' of Marriage," by Julienne Scocca, in Constitutional Law Journal, Vol. 2: 737 (1992) [Footnote No. 97]. [35]. "Diving the Priest: A Case Comment on Baehr v. Lewin," by Christopher Keller, in Law and Inequality, Vol. 12: 483-527 (1994), pg. 514. [36]. "Configuring the Bo(u)nds of Marriage: The Implications of Hawaiian Culture & Values in the Debate about Homogamy," in Yale Journal of Law & the Humanities, Vol. 8: 105-159 (1996), pg. 111. [37]. Cox, pg. 1109. [38]. Perez v. Sharp (32 California 2d. 711, 714, 715, 198 P.2d 17-19 (1948), quoted in "Same-Sex Marriage and Constitutional Privacy: Moral Threat and Legal Anomaly," by Hannah Schwarzschild, in Berkeley Women's Law Journal, Vol. 4: 101 (1988-89). [39]. Democracy and Distrust: A Theory of Judicial Review, by John Hart Ely, 1980, pg. 82, quoted in "Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination," by Andrew Koppelman, in New York University Law Review, Vol. 69, No. 2: 227 (May 1994). [40]. Strasser (Legally. . .) pp. 2-3. [41]. Mississippi University for Women v. Hogan, 458 U.S. 724 (1976), quoted in Friedman, pg. 145. [42]. Strasser ("Domestic. . ."), pg. 986. [43]. "Gay Marriage--A Modern Proposal: Applying Baehr v. Lewin to the International Covenant on Civil and Political Rights," by Anne Burton, in Indiana Global Legal Studies Journal, Vol. 3: 177 (1995). [44]. Ibid., pg. 182. [45]. Williams v. Illinois (399 U.S. 235 (1970), quoted in "Marriage Rights - Homosexuals and Transsexuals," by William Lentz, in Akron Law Review, Vol. 8: 2, 369-374, pg. 372. [46]. "Marriage, Equal Protection, and New Judicial Federalism: A View from the States," by Lisa Farabee, in Yale Law and Policy Review (14: 237-286 (1996)), pg. 259. [47]. "Public Values, Private Interests, and the Equal Protection Clause," by Cass Sunstein, in Supreme Court Law Review 195: 127, quoted in "Marriage, Equal Protection, and New Judicial Federalism: A View from the States," by Lisa Farabee, in Yale Law and Policy Review (14: 237-286 (1996)), pg. 263. [48]. "The Right to Privacy," by Samuel Warren and Louis Brandeis, in Harvard Law Review, Vol. 4: 193 (1890), quoted in "Heterosexuality: A Prerequisite to Marriage in Texas," by James Harper and George Clifton, in South Texas Law Journal, Vol. 14: 220-277 (1972-73), pg. 258. [49]. Strasser ("Family. . ."), pg. 1011. [50]. Ibid., pg. 1020. [51]. Friedman, pg. 161. [52]. Damslet, pg. 568. [53]. "Homosexual Marriage, the Changing American Family, and the Heterosexual Right to Privacy," by Jennifer Heeb, in Seton Hall Law Review, Vol. 24: 387 (1993). [54]. "Constitutional Aspects of the Homosexual's Right to a Marriage License," by Arthur Silverstein, in Journal of Family Law, Vol. 12: 627 (1972-73). [55]. "Principles and Prejudice: Lesbian and Gay Civil Marriage and the Realization of Equality," by Kathryn Kendell, in Journal of Contemporary Law, Vol. 22: 81-96 (1996), pg. 83. [56]. "Call the Caterer: Hawaii to Host First Same-Sex Marriage," by Erik Toulon, in Southern California Review of Law and Women's Studies, Vol. 3: 125 (1993). [57]. Strasser ("Domestic. . ."), pg. 951. [58]. Ibid., pp. 948-949 [Footnote omitted]. [59]. State v. Jackson (80 Mo. 175, 50 Am. R. 499, at 503 (1883)), quoted in "Heterosexuality: A Prerequisite to Marriage in Texas," by James Harper and George Clifton, in South Texas Law Journal, Vol. 14: 220-277 (1972-73), pg. 242. [60].The Case for Same-Sex Marriage, by William Eskridge, Free Press, 1996, pp. 159-160. [61]. Strasser (Legally. . .), pg. 3. [62]. "Same-Sex Marriage and the Right of Privacy," by William Hohengarten, in Yale Law Journal, Vol. 103: 1506-1507 (1994). [63]. Ibid., pg. 1509. [64]. Ibid., pg. 1510. [65]. Schwarzschild, pg. 115. [66]. State v. Bell (66 Tennessee (7 Barger) 9 (1872)), quoted in Cox, pg. 1115. [67]. 198 P.2d 17 (California 1848), quoted in Cox, pg. 1115. [68]. Koppelman, pg. 284. [69]. Strasser ("Family. . ."), pg. 1008. [70]. Ibid., pp. 1018-1019. [71]. Ibid., pg. 995. [72]. Ibid., pg. 998. [73]. Strasser, ("Domestic. . ."), pp. 938-939. [74]. Friedman, pg. 141. [75]. Ibid., pg. 145. [76]. Koppelman, pg. 208. [77]. Ibid., pg. 210. [78]. The Homosexual Matrix, by C.A. Tripp, 1987, pg. 159, quoted in "The Necessity for State Recognition of Same-Sex Marriage: Constitutional Requirements and Evolving Notions of Family," by Alissa Friedman, in Berkeley Women's Law Journal, Vol. 3: 157 (1987-88). [79]. Friedman, pg. 158 [Footnote No. 158]. [80]. "Single-Sex Families: The Impact of Birth Innovations Upon Traditional Family Notions, by Shapiro and Schultz, in Journal of Family Law, Vol. 24: 163 (1985-86), quoted in Friedman, pg. 160. [81]. Friedman, pg. 163. [82]. "Legalize Gay Marriage," by Craig Dean, in The New York Times, September 28, 1991, pg. 15, quoted in Damslet, pg. 562. [83]. "Marriage: Homosexual Couples Need Not Apply," by Deborah Gray, in New England Law Review, Vol. 23: 544 (Autumn 1988). [84]. "Marriage, Law, and Gender: A Feminist Inquiry," by Nan Hunter, in Law & Sexuality, Vol 1: 18-19 (1991). [85]. Braschi v. Stahl Associates (74 New York 2d 201, 543 N.E. 2d 49, 544 N.Y.S.2d 784 (1989), quoted in Hunter, pg. 22. [86]. "Against Marriage," by Steven Homer, in Harvard Civil Rights-Civil Liberties Law Review, Vol. 29: 520 (1994). ----------------------------------------------------- The Forum on the Right to Marriage (FORM) Box 8033 JFK Station Boston, MA 02114 (617) 868-FORM FORMNATL@aol.com HTTP://www.calico-company.com/formboston America Online: Keyword: GLCF Library. New Files -or- Legal Issues -or- Organizations Materials available: Arguments/Letters to the Editor Flier (new) * General Quotations Hawaii Primer How You Can Help Ithaca Primer Law Chart Law Review Summary Legal History Legal Summary Marriage Primer Press Kit * Resources Timeline Wedding Announcements *available soon ############################## FORM is a national grassroots organization primarily engaged in education and outreach concerning the issue of same-sex marriage. FORM provides resources and training to similar locally based groups throughout country. FORM exists as well to facilitate and support the efforts of individuals, whether legal or legislative, that advance the cause of same-sex marriage in the United States. When feasible, FORM will work in concert with gay and lesbian political groups to optimize organized efforts to attain same-sex marriage rights. ########################################## --------(Please print out, cut here, and mailback)----------- Please help us to begin building the framework for legalizing same-sex marriage. _ Yes, I want to be a member of FORM. 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