Subject: LAW REVIEW SUMMARY
From: [email-masked]
Date: Sun, 20 Jul 1997 01:01:24 -0400 (EDT)

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
[email-masked]
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.  Please
enter my membership at the following level:

    _ Individual ($20.)
    _ Household ($30.) 
    _ Student/Low-income ($10.)

    _ I want to make an additional contribution in the amount of:

       $ _____  
   
 (Please make checks payable to: Forum on the Right to Marriage (FORM),
Inc.)     

 _ Add me to your mailing list:     
 __________________________________
 __________________________________
 __________________________________

 _ I'm interested in becoming a FORM organizer/starting a chapter in my
area.

We hope that you will become involved in FORM.  But the most important
thing, in whatever aspect of gay rights we may be involved in, is that we
as gay people share with those around us the truth of our lives.  FORM's
activities can serve only as an adjunct to individual gay men, women, and
young people willing to reach out and change the hearts and minds of the
American people. Thanks for your interest and your continued assistance
in helping to make marriage a reality for the gay community.  

Please mail to:

The Forum on the Right to Marriage (FORM)
Box 8033 JFK Station
Boston, MA 02114
***********************************

Contributions to FORM go solely toward our efforts to obtain full marriage
rights for same-sex couples.