Wednesday, July 16, 2008

Families: Defending Traditional Marriage II

Have you heard about Proposition 8?

This November, the California Marriage Protection Act will be on the ballot as Proposition 8. This will amend the California constitution, adding SECTION 2, Article I, Section 7.5. These words will be added to the constitution, "Only marriage between a man and a woman is valid or recognized in California."

A few days ago I posted a letter from LDS Church leaders asking members in California to support Proposition 8. I also commented on a piece of Yellow Journalism about the First Presidency letter that appeared in the Contra Costa Times newspaper.

In this article I’ll try to give some background information about Proposition 8, the California Marriage Protection Act.

The federal Defense of Marriage Act, also known as DOMA, was passed by Congress by a vote of 85-14 in the Senate and a vote of 342-67 in the House of Representatives, and was signed by President Bill Clinton on September 21, 1996. It became Public Law No. 104-199, 110 Stat. 2419.

Its provisions are codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C. You can look these up, but I’ll put the pertinent text here.

1 U.S.C. § 7 says, "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife."

28 U.S.C. § 1738C says, "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."

In other words, the federal government would not recognize, and no state would be forced to recognize, same sex marriages even if legal in one of the states. It was left up to the states to pass their own legislation deciding how marriage would be defined in their jurisdiction.

In 2000, California Family Code section 300 defined marriage as, "a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary."

Even though the definition governing who may marry explicitly precluded contracting a same-sex marriage in California, a separate provision, section 308, governed recognition of marriages contracted elsewhere. "A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state."

Section 308 was seen as a "loophole". Proposition 22, also known as the California Defense of Marriage Act, and the Knight Initiative after its author, the late state senator William "Pete" Knight, closed the "loophole". Prop 22 added section 308.5, "Only marriage between a man and a woman is valid or recognized in California." The fourteen words in Prop 8 are identical to what was in Prop 22.

At the end of 1999 and during the first months of 2000, I spent many hours going door-to-door in the city where I live handing out brochures and telling people about Proposition 22. Thousands of other people did the same thing in other places across California. Our efforts to make people aware of the issues surrounding Prop 22 were successful. Voters adopted the measure on March 7, 2000 by a wide margin, with 61.4% in favor.

That’s where things sat for several years in California. What were things like elsewhere? At the end of 2007 only Massachusetts allowed same-sex marriage. Connecticut, New Jersey, New Mexico, New York, and Rhode Island did not have statutory or constitutional language protecting traditional marriage. Of the other 44 states, 24 have both constitutional and statutory marriage protection, 17 have statutory protection, and 3 have constitutional protection. California was one of the statutory states. (The link in this paragraph has complete information, including a clickable US map.)

On May 15, 2008 the California DOMA was ruled unconstitutional by the California Supreme Court as a violation of the "equal protection" clause. The decision took effect on June 16, 2008, and was hailed with a flurry of gay "marriages".

The proposed California state constitutional amendment was then placed on the 2008 California general election ballot.

In addition, Federal constitutional amendments were proposed in 2002, 2003, 2004, and 2005/2006. So far none has passed. Senator Roger Wicker introduced the 2008 Federal Marriage Protection Amendment on June 25. This year’s Marriage Protection amendment is identical to the 2004 version. It states, "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

If that could be added to the federal constitution, a lot of nonsense in a lot of states could be avoided. But if not, then it is up to us to promote and enact Proposition 8.

Leading the Proposition 8 initiative is, a diverse coalition of various organization and individuals. This coalition consists of many organized Christian denominations including: Catholics, Baptists, Methodists, Mormons, Presbyterians, and many protestant non-denominational churches as well. Some well-known individuals supporting this measure include: Focus on the Family's Dr. James Dobson, Republican State Senator Tom McClintock and presidential candidate and U.S. Senator John McCain. reports support from over 1 million individuals.

This article gives a history of efforts to defend traditional marriage. It does not present the pros and cons of traditional marriage. I'll take a stab at that in a few days. I encourage you to study the issues and (from the First Presidency letter), "do all you can to support the proposed constitutional amendment by donating of your means and time to assure that marriage in California is legally defined as being between a man and a woman."

This article is part of my effort to follow the prophet.


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