Gains and Losses

The battle to protect the traditional definition of marriage continues to be won by popular vote—and lost in the courts.

After Californians voted in November to reverse same-sex marriage, state Attorney General Jerry Brown said the 18,000 or so homosexual marriages that had been performed after May 15, when California’s Supreme Court ruled that restricting marriage to heterosexuals was unconstitutional, would remain valid.

Those 18,000 couples, living in communities as neighbors and friends, showing up at school functions and church services, may make it more diffi cult to eliminate the concept of samesex marriage, in spite of Proposition 8, the Election Day victory in which 52.3 percent of voters decided that California’s constitution should recognize only heterosexual marriage.

Writing in the Los Angeles Times on November 10, UC Berkeley law professor Goodwin Liu said that those 18,000 couples represent a “potential catalyst for broader acceptance” of same-sex marriage.

“The more familiar we become with gay spouses and their children—as our friends, neighbors, and co-workers— the more gay marriage will become an unremarkable thread of our social fabric,” he said.

Indeed, the phenomenon is showing signs that it’s here to stay. Since the 2003 Massachusetts Supreme Judicial Court opinion that banning same-sex marriage in the Bay State is unconstitutional, over 11,000 same-sex “marriages” have been performed there.

Nationwide, about 85,000 same-sex couples have entered into a legally recognized relationship, according to the Williams Institute of the UCLA College of Law. Many are in legal “civil unions” or “domestic partnerships,” arrangements devised by state legislatures granting many of the benefits of marriage.

Yet the battle for a traditional defi nition of marriage continues to be won by popular vote—and lost in the courts. After Election Day victories in California,
Arizona, and Florida, 30 states now have voter-approved constitutional amendments defi ning marriage as the union between one man and one woman. In the three states where samesex marriage has been approved, it has been advanced by a slim majority on a court.

Arizona and Florida passed ballot initiatives on November 4 to have their constitutions defi ne marriage as between one man and one woman, with Arizona’s passing by 56.2 percent to 43.8 percent, and Florida’s by 62.1 percent to 37.9 percent.

In Arkansas, nearly 57 percent of voters approved an initiative barring people who are “cohabitating outside a valid marriage” from serving as foster parents or adopting children. That would include same-sex couples.


Proposition 8 was the second time in eight years that Californians voted to protect marriage. The vote was weaker than it was in 2000, when 61 percent of voters rejected same-sex marriage. The 2000 vote did not put the ban in the state constitution, however, as Proposition 8 did.

Nevertheless, Bill May, who headed Catholics for as part of the Proposition 8 coalition, called it a “historic vote.”

“It was the first time we’ve had a reversal of a court ruling,” said May, who is chairman of Catholics for the Common Good. The California Supreme Court decision was a “wakeup call,” he said.

Carol Hogan, communications director with the California Catholic Conference, felt that the court ruling, which she said “created a new protected class—sexual orientation,” helped the Proposition 8 campaign “because we could predict that since it was now a protected class, it would be taught in public schools.”

There was precedent for that. Soon after the Massachusetts high court decision, schoolchildren began receiving instruction on the normalcy of samesex relations. Not only that, some parents had to fight for information on what their children were being exposed to—and for the right to take them out of classes where objectionable material was being presented.

In 2007, a federal judge ruled against two couples who so objected, declaring that since same-sex marriage is now “legal” in Massachusetts, the school had not only a right but a duty to teach the normalcy of homosexuality, and that schools have no obligation to notify parents or let them opt out.

“Our advertising featured what’s happened in Massachusetts, where schoolchildren had to read King and King,” Hogan said, referring to a book describing (and showing) two princes falling in love and getting married. “Parents knew that could happen here.”

Traditional marriage advocates in Massachusetts point out that although the state’s Supreme Judicial Court ruled same-sex marriage constitutional, the state legislature never changed the law to allow it.

“The legislature doesn’t want to touch this thing,” said Kris Mineau, president of the Massachusetts Family Institute. “There have been several bills from the more radical side to legalize it, but it’s always put in committee. We’ll see how it goes in the new legislative session.”


Meanwhile, same-sex couples in Connecticut began receiving marriage licenses in mid-November, thanks to that state’s high court decision the previous month that such unions cannot be prohibited. An Election Day effort to open the state constitution in order to pave the way for a marriage amendment failed to garner enough of the popular vote.

“For the pro-family movement in Connecticut right now, it’s similar to the pro-life movement right after Roe v. Wade was decided,” said Peter Wolfgang, president of the Family Institute of Connecticut.

He also finds himself in a similar situation to those in Massachusetts, where traditional marriage advocates have failed to get a constitutional amendment process off the ground and have to fight smaller battles for now, namely, protecting the rights of parents to guide their school-age children and protecting the rights of religious organizations to operate according to their consciences in a world where same-sex marriage is considered correct and normal.

“In the long term we’ll work to overturn the court’s decision,” said Wolfgang, referring to Kerrigan v. Commissioner of Public Health, “and in the short term, we’ll fight for conscience protection and opt-out provisions.”

Though he lives in one of the bluest of the blue states, Wolfgang takes some comfort in the fact that the plaintiffs who won the right to marry did so in court. “The Kerrigan decision was the worst possible victory for our opponents,” he said. “They couldn’t get it through our legislature, even though our legislature is one of the most liberal in the country.”

But that is a two-edged sword. Though he still holds out hope that the Connecticut constitution can be amended to protect marriage, such an effort would have to go through the legislature first. “Normally you start something like this in the judiciary committee,” he said. “And right now that is co-chaired by two legislators who are openly gay and have been the lead legislative champions for same-sex marriage.”

In the meantime, he is bracing for the issues Massachusetts residents have been experiencing over the past five years: pressure on religious organizations to violate their values and pressure on schools to try to normalize homosexuality, while parents lose the opt-out right. “We might even set up a hotline parents can call when things like this happen,” he said.


Wolfgang predicts that New York and New Jersey are the “next targets” for the same-sex marriage movement. Dennis Poust, spokesman for the New York State Catholic Conference, said he expects there will be movement in Albany to pass a same-sex marriage bill in the new year, “now that it appears that the Democrats will be the majority party” in both houses of the state legislature.

“I do question if the Democrats have the votes right now to pass it, as a small number of Democrats would certainly vote nay,” he said.

New York’s Democratic governor, David Patterson, recently ordered New York state to recognize “same-sex marriages” performed in California, Massachusetts, and Canada.

In New Jersey, which has had “civil unions” since 2006, there’s been an effort to legislate same-sex marriage for several years. But whether the legislature will pass such a bill yet is questionable. It “has not changed in complexion much since civil unions passed,” said Patrick Brannigan, executive director of the New Jersey Catholic Conference.

Wolfgang feels the issue will end up at the US Supreme Court, as abortion did.

“We’re probably one vote away on the Supreme Court from a national right to same-sex marriage,” he said, predicting that President Obama will provide the fifth vote that same-sex marriage advocates need. A case involving same-sex couples’ ability to marry in one state and have that marriage recognized in another state could work its way up to the high court, Wolfgang speculates.


Thomas Messner, a visiting fellow at the Heritage Foundation, warns of a danger if same-sex marriage is legalized. In a paper published on October 30, Messner said redefining marriage to include same-sex unions poses significant threats to religious liberty.

“The idea that marriage is a relationship between a man and a woman is a core religious belief for signifi cant numbers of Americans,” he wrote. “But the freedom to express this and other beliefs about marriage, family and sexual values will come under growing pressure as courts, public officials, and private institutions come to regard the traditional understanding of marriage as a form of irrational prejudice that should be purged from public life.”

“We’ll continue to see serious conflicts over religious freedom,” he said in an interview. He said that Congress may act on two pieces of legislation in the coming year: one repealing the Defense of Marriage Act (DOMA), which says no state has to accept a same-sex marriage from another state, and the Employment Non-Discrimination Act (ENDA).

If DOMA is struck down, it would open same-sex marriage to all states, even those with constitutional amendments protecting traditional marriage, he said. And ENDA “could create conflicts for religious employers who considered moral conduct an important part of their employment decisions but who do not come within the scope of the exemption that is provided.”

Maggie Gallagher, president of the National Organization for Marriage, fears that government is “starting to declare that ‘sexual orientation is just like race,’ which means for the first time in American history, our own government may be pledged to regard all traditional religious communities as the legal equivalent of racists.”

“If the courts or the legislators redefine marriage, our children will be taught that gay marriage is a great good and it will become very difficult to do what we have to do: transmit an authentically Christian marriage culture to our own children,” said Gallagher. “Our children are being relentlessly propagandized even as our own voices are being silenced and repressed.”

While Connecticut and Massachusetts appear to be in for a long fight, much like the national debate over abortion, and other states seem poised to legalize same-sex marriage, many traditional marriage advocates feel that education is their best hope right now.

“First of all, the Church has the answers,” said May. “Catechesis is absolutely critical, especially with the theology of the body, to help them understand what it means to be a man, to be a woman, what love means.”

Dale O’Leary, author of One Man, One Woman: A Catholic’s Guide to Defending Marriage, agrees. “We really have to get out the facts. What amazed me in 1995 when I started researching this was that the evidence was overwhelmingly on our side,” she said. “There’s no evidence that homosexuality is genetic. There’s no way it could be. If it was, why is one twin of identical twins homosexual and the other is not?”

That’s important to emphasize, she says, because the same-sex marriage side is winning on the basis of “pity.” People sympathize when they feel that homosexuals can’t do anything about their homosexuality and therefore deserve the right to marry, just like everyone else.

The vote in California hinted that the younger generation is already sympathetic to the same-sex marriage cause. While majorities of California blacks and, to a lesser extent, Hispanics voted for Proposition 8, 60 percent of voters under 30 disapproved of adding the traditional defi nition of marriage to the state constitution.

For Bill May, that is “a reflection of the fact that younger people are indifferent to marriage. They understand it as a benefit to adults and not having to do with (the procreation and rearing of) children.” He added, “There are programs in place in every state undermining children’s understanding of what marriage is—in sex education, in diversity education.”

The 60 percent “also reflects the idea that marriage is entirely a private thing, a way of affirming the love someone has for someone else,” said Messner. Marriage as something existing in the public interest—because it provides and forms the next generation—is an idea that’s been lost, he said.

“What folks need to do to ‘win’ this battle is (a) understand the challenge to marriage and the religious liberty problems associated with same-sex marriage; (b) commit to defending marriage and be willing to take a public, courageous stand on the issue; (c) get involved politically; and (d) work to strengthen all aspects of marriage, keeping in mind that the goal is to strengthen marriage, and same-sex marriage is just one threat.”

For at least one activist, civil disobedience is also an option. Citing the writings of Martin Luther King, Brian Camenker, president of MassResistance in Massachusetts, said, “You have to take a civil disobedience attitude. There is no such thing as men marrying each other. There is no legislature or court that can repeal the laws of nature.”

From the mixed results in November— ballot wins and court losses, surveys showing growing acceptance of same-sex marriage—one thing is clear: the fight is far from over, and traditional marriage advocates have their work cut out for them.


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About John Burger 22 Articles
John Burger is news editor of