Thought you might be interested in the following (Try as I might I could
not get the footnotes to copy correctly [perhaps someone can enlighten me].
Instead I've simply listed all the footnotes at the end.)
--
Steven Montgomery
MINNESOTA HOUSE OF REPRESENTATIVES COMMITTEE ON CIVIL LAW
78th Regular Session
March 9, 2004
Representative Mary Liz Holberg, Committee Chair
Prepared Testimony of Professor Teresa Stanton Collett*
Good afternoon Mister Acting Chairman, Members of the Committee, and other
distinguished guests. I am pleased to have been given the opportunity to
testify in favor of HF 2798 regarding the need to put before the voters an
amendment of the Minnesota state constitution defining marriage as the
union of one man and one woman. My testimony represents my professional
knowledge and opinion as a law professor, who writes on the subjects of
marriage and family. It is not intended to represent the views of my
employer, the University of St. Thomas School of Law, or any other
organization or person.
There is widespread agreement that marriage is a unique relationship
between one man and one woman. A recent poll conducted at the request of
the Pioneer Press and Minnesota Public Radio revealed that 63% of the
Minnesotans surveyed oppose legalizing same sex marriage while only 27 %
support it. Minnesota law currently reflects the understanding that
marriage is the union of a man and a woman, as does the law that has been
legislatively enacted in all fifty American states. These laws are based
on the understanding that men and women are fundamentally different, and
this difference is foundational to the institution of marriage.
The Current Attack on the Law
The Situation in the Courts
As I noted in my testimony before this Committee in January, this
consensus, however, has been under continuing attack. For the past
thirty-five years there has been a well-orchestrated effort by some
gay-rights activists to obtain recognition of same-sex unions as
marriages. Unsuccessful in persuading the public and elected
representatives of the people on the merits of their claim, advocates have
turned to the courts, arguing that the federal and state constitutions
require recognition of same-sex marriage. To date, no federal court has
agreed. However, state courts in Hawaii, Alaska, Vermont, and
Massachusetts have found that varied provisions of those state
constitutions require recognition of same-sex unions.
In Hawaii the Supreme Court found that, absent a showing of a compelling
state interest, equal protection as guaranteed by the state constitution
required the state to issue marriage licenses to same sex couples. In
Alaska the state constitutional protection of privacy provided the warrant
for a trial court to order officials to issue marriage licenses to same sex
couples. The citizens of Hawaii and Alaska responded to the actions of
their courts by amending their state constitutions to correct what was
largely perceived as judicial overreaching.
In Vermont, the court grounded its decision compelling recognition of same
sex unions as the equivalent of marriage in the "common benefits" clause of
the state constitution, a provision similar to, but different from, the
equal protection guarantees found in the Fifth and Fourteenth Amendments of
the federal constitutions. Vermont legislators did not afford their
citizens the opportunity to correct this judicial interpretation, instead
passing Act 91, An Act Relating to Civil Unions. The Vermont statute
creating civil unions was passed in compliance with that state's supreme
court order to "create a parallel licensing or registration scheme, and
extend all or most of the same rights and obligations provided by the law
to married partners." As initially enacted civil unions differed from
civil marriage in name only same sex couples enjoyed all the legal
benefits and obligations of marriage under Vermont law.
Because the vast majority of couples obtaining civil union licenses were
not Vermont residents, the question of interstate recognition of these
unions has been raised in several states with mixed results. At this time
there is no final appellate judgment giving interstate recognition to a
Vermont civil union.
Massachusetts
On November 18, 2003 the Massachusetts Supreme Judicial Court ruled 4-3 in
Goodridge v. Dept. of Public Health that the state's laws reserving
marriage for the union of one man and one woman were
unconstitutional. Justice Greaney, citing the Lawrence v. Texas, an
opinion of the United Supreme Court, said that morality was no longer a
rational basis for upholding the law, which is the minimal test for a law's
constitutionality. In fact, the Massachusetts court found no rational basis
whatever for upholding the law.
Writing for the majority, Chief Justice Margaret Marshall gave the
legislature 180 days to "take appropriate action" in light of the opinion,
which was widely interpreted as an "order" to create a "gay marriage" law,
even though the court did not state this.
On February 3, 2004 the Massachusetts Supreme Judicial Court advised the
state senate that enacting a civil unions law similar to that of Vermont
would not satisfy the equal protection and due process provisions of the
state constitution.
No action was taken at the Constitutional Convention which convened on
February 11 to consider whether to amend the state constitution to define
marriage as the union of a man and woman. The legislators will reconvene
on March 11 to continue their deliberations. However, the earliest any
amendment could make it to the ballot would be November 2006.
Other Cases in the States
When I testified in January, three states, Indiana, New Jersey, and
Arizona, had challenges to their marriage laws pending in the
courts. Since then that number has more than doubled, in part due to
states' attempts to respond to acts of civil disobedience by public
officials issuing documents to same sex couples purporting to be marriage
licenses.
San Francisco, California
The most notorious conduct is that of the mayor of San Francisco. On
February 10, 2004 Mayor Gavin Newson issued a letter reflecting his
judgment that the restricting marriage licenses to opposite couples
violated the equal protection clause of the California Constitution. He
directed the San Francisco County Clerk to "determine what changes should
be made to the forms and documents used to apply for and issue marriage
licenses in order to provide marriage licenses on a non-discriminatory
basis, without regard to gender or sexual orientation." This was his
judgment; notwithstanding that California law requires marriage be between
a man and a woman, and that it is the legislatures and courts, not mayors,
who should resolve any conflict in the law. In the intervening month San
Francisco has issued over 3600 marriage licenses, some to Minnesota
couples. The legality of the County's actions is currently before the
California Supreme Court.
New Mexico
In New Mexico a county clerk, relying upon the opinion of the county
attorney, began to issue marriage licenses to same sex couples. When she
received an opinion of the State Attorney General that she was violating
state law, she stopped issuing licenses, although she continued to recorded
invalid licenses for a brief time.
New York
In New Paltz, New York, Jason West, the Mayor performed ceremonies
purporting to be marriage ceremonies for twenty-five same-sex couples. The
State Attorney General issued an opinion that such actions were improper
and Mr. West was charged with nineteen counts of violating New York law
that makes it a misdemeanor to solemnize a marriage without a license. The
mayor has suspended his activities pending a meeting with the attorney
general, but some clergy in the community have continued the public
ceremonies.
On March 5, a gay couple that had tried to obtain a marriage license in New
York City brought suit challenging the constitutionality of the New York
state law.
Multnomah County, Oregon
In Multnomah County, Oregon county officials have issued over 3000 marriage
licenses to same-sex couples, some to out of state couples, after county
officials in private meetings determined that state law did not define
marriage as the union of a man and a woman. A lawsuit was filed last
Friday seeking an injunction to halt the issuance of new licenses and to
invalidate those that had issued on the basis that the actions of the
county officials violated the Open Meetings Laws of the state. Yesterday
the trial court refused a temporary restraining order requested by the
plaintiffs.
West Virginia, Florida, Nebraska, and Washington Laws Also Under Siege
In West Virginia, two women have sued claiming that the state must
recognize their union as a marriage under that state's constitution. A
similar lawsuit has been filed in Florida. News reports in the gay press
indicate that many of the Florida plaintiffs were recruited at gay
bars. Nebraska is also defending its law in federal court, and just
yesterday a suit was filed in Washington state challenging that state's
marriage laws.
In the span of less than six weeks since this Committee last addressed this
issue, the number of states having to defend the constitutionality of their
marriage laws has multiplied by almost four times.
Why Is the State in the Marriage Business?
These lawsuits and lawless actions by mayors and county officials
force this body to examine the fundamental question of why is the
government in the marriage business. In fact, within the legal academy and
on the opinion pages of newspapers and magazines a radical call is
occasionally heard for getting government out of the marriage business
entirely. And if in fact, as same-sex marriage activists seem to suggest,
the government is in the business of issuing "love licenses, as a long-time
supporter of limited government, I would have to agree.
Marriage as Channeling Procreative Conduct
However, I believe that is an incorrect understanding of the public policy
underlying the legal institution of marriage. The legal institution of
marriage is about channeling reproductive sexual conduct into exclusive
permanent sexual relationships. The state has an interest in channeling
this conduct into such relationships because sexual acts between a man and
a woman have unique consequences. They lead to the creation of new
life. This in turn leads to a period of vulnerability both for the woman
during the period of pregnancy and the child while he or she is nurtured
through childhood. The legal institution of marriage is designed to insure
that the sexual partners who participate in the creation of the child
provide both material and personal support to the child. There is a
growing consensus in the social science literature that clearly establishes
that children do best when they are raised by both biological parents who
are married to each other.
Some might argue that this is an out-dated and overly restrictive view of
marriage. As evidence of this, opponents might point to the absence of any
marriage-entry requirement of procreative ability or intention. It is true
that that the state recognizes marriages between elderly or infertile
couples unable to conceive, or younger couples intending to avoid
conception through the use of various forms of contraception. But these
arguments ignore the importance of modeling to be achieved by encouraging
all heterosexual couples to marry, as well as the legitimate self-imposed
privacy limits a state may observe in its regulation of a matter.
In the case of the contracepting couples, the obvious response is that
human intentions do not define fertility. According to the Minnesota
Department of Health, depending on age, approximately one third to
three-quarters of all pregnancies are unintended. (Most of us can confirm
this from our own experience related to "oops babies.") It is appropriate,
indeed necessary, to encourage these couples to marry if the state is to
achieve its objective of encouraging childbearing within marriage.
As for the young infertile couples, many do not know of their condition at
the time they apply for a marriage license. Certainly it is within the
proper constitutional boundaries for the state to assume the fertility of
all individuals rather than require intrusive testing or the revelation of
such private information. In the case of the elderly couples, where an
assumption of fertility seems counterfactual, at least as to the women, it
is proper for the state to include such couples within the marriage laws to
enhance the modeling and channeling functions of the law. When a young
person sees an elderly couple, the person does not know if the couple has
been married thirty minutes or thirty years. If we want the societal norm
to be that men and women marry, preferably for life, we want the conduct to
be modeled as extensively as possible.
In light of the fact that gay and lesbian couples do not, and cannot engage
in the procreative act that is the object of the state's concern, they do
not properly fall within the state's licensing provisions.
Marriage as Mutual Commitment
In contrast to the view that marriage is oriented toward the creation and
nurturing of children, advocates for same sex unions argue that
contemporary laws view marriage as primarily a vehicle for self-fulfillment
through extended mutual self-giving and support. In this view, it is the
couple's willingness to publicly assume mutual obligations of support that
is the primary interest advanced by state recognition of marriage. These
obligations are independent of any particular sexual act, and are as unique
as the couples making their marriage vows.
Definitional Problems
Acceptance of this position reorients marriage toward adult fulfillment
rather than family formation. This is a dramatic change in the policy
underlying marriage. Marriage as a man and a woman recognizes that marriage
is more than an intimate community of love and commitment. It is a unique
sexual community that leads to human flourishing through the union of
sexual difference and the creation of new life within a stable union. One
distinctive aspect of marriage is the requirement that couples engage in
heterosexual vaginal intercourse. Incapacity or refusal to engage in
vaginal intercourse historically has been grounds for annulment of a
marriage in all fifty states. No other legal status is dependent upon a
sexual act, and no other sexual act is a legal condition to any other form
of agreement or contract. The unique connection of marital status to
vaginal intercourse is because this act is the primary means by which
married couples form families, kinship groups are expanded, and bloodlines
are extended to the next generations. There is no comparable distinctive
activity for same-sex couples.
Any objection to state recognition of same-sex sexual activity can be
avoided by crafting a definition of civil unions devoid of any expectation
of sexual contact, but such a definition would likely fail to garner much
support. The need for or desirability of creating a new legal status for
any two people who live together and participate in their communities
together is questionable, yet those are the only two activities the Vermont
legislature identified as universally engaged in by same-sex couples and
married couples. Embracing these as the defining activities of a legal
status equivalent to marriage would render a definition that is
simultaneously underinclusive and overinclusive. Some married couples do
not live together as evidenced by the growth of "commuter marriages" where
a married couple maintain two households, often due to diverse work
locations. Others, such as roommates, cohabiting couples, and members of
religious communities, live together and often participate in the community
together, yet would rightly resist any attempt to characterize their
arrangements as civil unions or the functional equivalent of marriage.
Even if the definitional problems related to same-sex unions can be
overcome, equating these relationships with marriage poses another set of
problems. While societal expectations regarding the responsibilities of
husbands and wives have changed during the last century, there is still
relatively broad consensus about sexual fidelity, sharing resources,
providing mutual support, and aspiring to lifelong duration. There are no
similarly shared expectations regarding same-sex couples. Sexual contact
with someone other than the legally recognized partner in a civil union is
unlikely to result in unwitting parental responsibility for an unrelated
child. It is obvious that a lesbian involved in a civil union was not
impregnated by her partner, and the gay man who fathers a child can do so
only through a sexual encounter with someone other than his civil union
partner. Living together and joint participation in a community offers
little guidance for judges ruling on enforceability of agreements by those
involved in civil unions to limit sharing of assets or obligations of
mutual support. Legislators considering changes in laws governing the
dissolution of marriage properly presume that those changes will impact a
substantial number of households including minor children. Such an
assumption regarding dissolution of civil unions is less likely to be
valid. The impact of childbearing on the income-producing capacity of
women should be factored into any system of allocating marital property,
yet the sterile nature of same-sex unions makes childbearing within those
unions a non-issue for those couples. In the absence of children, neither
partner is likely to have become economically dependent by assuming primary
responsibility for managing the household and attending to the needs of
children. In short, if same-sex unions are to be legally recognized, that
recognition should reflect the dominant experience and characteristics of
these couples, rather than the common experience of heterosexual couples.
Moral Controversy
The morality of sexual acts between same-sex partners is deeply contested
in American society. To many, acts of anal intercourse are unnatural and
degrading. Opponents argue that these acts treat the human body as a mere
instrument for selfish pleasure and fail to express any meaningful union of
persons. To affirm relationships involving such acts would not promote good
conduct, but instead would falsely suggest an equality of these acts with
vaginal intercourse, the distinctive activity of heterosexual marriage.
While proponents of same-sex unions disavow any intention of demanding that
religious bodies recognize or participate in solemnizing these unions, the
experience in other Western European countries should give us pause. For
example, two Canadian provinces recognize same-sex unions as marriages by
judicial fiat. In that same country, there have been criminal convictions
under hate speech laws for publication of an advertisement opposing
same-sex marriage that merely cited Bible verses without quoting the
verses. In Ireland the Irish Council on Civil Liberties has publicly
threatened "[c]lergy and bishops who distribute the Vatican's latest
publication describing homosexual activity as "evil" could face prosecution
under incitement to hatred legislation." In Spain, Madrid's Cardinal Varela
gave a sermon condemning gay marriage. He has been sued by the Spanish Gay
Advocates for "slander and an incitement to discrimination' on the basis of
sexual orientation." In England, self defense was denied to a pastor who
defended himself when assaulted by several attackers while carrying a sign
citing Bible verses regarding homosexual conduct. In Sweden, a pastor who
has been charged with hate speech for a sermon condemn homosexual acts.
These events suggest that it is not neutrality or tolerance that is at
stake, but approval and coerced affirmation that is the goal.
Why Amend the Constitution?
Finally, let me respond to the argument that the state
constitution is not intended to be amended for such a matter. The
constitution of this state is a document that gives political structure to
the government of the state. It directs the action of all government
officials. As such it is an agreement between the people and their
representatives regarding the way the people's business is to be
conducted. In the past it has not been necessary to address the nature of
marriage because of the societal consensus that marriage was about family
formation. Today we confront differing views, and we must choose.
Conclusion
That is the reality of our situation. Either the state will continue to
regulate marriage out of concern for the well-being of the family or it
will view it as a means of individual fulfillment. In making this choice,
either the people with give meaning and structure to our political order
through the process of political debate and democratic voting, or it will
be imposed upon us by lawyers and judicial fiat. While I am a member of
the "lawyer class" I do not believe that such a basic issue concerning how
we order our common lives together should be controlled by what Tocqueville
characterizes as the "aristocracy" of America. Rather I believe it should
be decided over the dinner tables and lunch counters and water coolers of
this great state as the people of this state debate the issue and then come
together to vote.
I urge members of this committee to give the people of Minnesota the
opportunity to express their will on this matter directly through a
constitutional amendment.
Thank you, Mister Chairman, for allowing me the time to appear before the
committee and to extend my remarks in the form of this written testimony.
Notes
# Professor of Law, University of St. Thomas School of Law, MSL 400, 1000
LaSalle Avenue, Minneapolis, MN 55403-2015, telephone 651-962-4973, fax
(651) 962-4996, email [EMAIL PROTECTED]
# Opinions polls have consistently revealed that Americans oppose same-sex
marriage by significant margins. See e.g. Roper Opinion Poll, U.S. News
and World Report (May 1993)(60% "strongly oppose" and 14% "somewhat oppose"
recognition of same sex marriages) available in Westlaw poll database with
search "same sex marriage"; Dana Blanton, Majority Opposes Same Sex
Marriage (62% oppose and 26% favor same sex marriage. 58% favor and 34%
oppose a constitutional amendment defining marriage as being between a man
and a woman)(Aug. 26, 2003) at
http://www.foxnews.com/story/0,2933,95753,00.html; The Harris Poll,
Attitudes to Gays and Lesbians Have Become More Accepting, but Most People
Still Disapprove of Single-Sex Marriages and Adoption by Same Sex (Feb. 9,
2000) (63% of those surveyed in 1996 opposed and 11% approved same sex
marriage while 55% opposed and 16 % approved same sex marriage in 2000) at
http://www.harrisinteractive.com/harris_poll/index.asp?PID=1; David Morris
and Gary Langer, Most Oppose Same Sex Marriage But Balk at Amending
[Federal] Constitution (Jan. 21, 2004)((55% believe it should be illegal
for homosexual couples to get married and 58% believe each state should
make its own law) at http://abcnews.go.com/images/pdf/945a2GayMarriage.pdf.
# Tom Scheck, Most Minnesotans Opposed to Gay Marriage (Feb. 5, 2004) at
<http://news.mpr.org/features/2004/02/05_scheckt_gaymarriagepoll/>. Polling
questions and results are available at
<http://news.mpr.org/features/2004/02/05_scheckt_pollresults/>.
# Minn. Stat. 517.03 (Supp. 1998).
# This is true even in Vermont where the legislature, under judicial
order, adopted statutes creating the legal status of "civil unions" which
are intended to be the legal equivalent of marriage, but do not bear the
title marriage. 15 Vt. Stat. Ann. Sec. 1201(4).
# The long-standing nature of this effort is evidenced by Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971)(defining marriage as requiring one man and one
woman was not discriminatory), and Singer v. Hara. 522 P.2d 1187 (Wash.
1974)(same).
# See Shahar v. Bowers, 114 F.3d 1097 (11th 1997)(upholding Ga. attorney
general's withdrawal of employment offer to a woman due to fact that she
entered into a same-sex union).
# Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)(equal protection clause requires
state show compelling interest in restricting marriage to one man and one
woman).
# Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super. Ct.
Feb. 27, 1998)(state constitutional right of privacy requires recognition
of same-sex marriage).
# Baker v. State, 744 A.2d 864 (Vt. 1999)(common benefits clause requires
recognition of same-sex unions).
# Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).
# Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)(equal protection clause requires
state show compelling interest in restricting marriage to one man and one
woman).
# Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super. Ct.
Feb. 27, 1998)(state constitutional right of privacy requires recognition
of same-sex marriage).
# "The legislature shall have the power to reserve marriage to
opposite-sex couples." Haw. Const. Art. I, sec. 23 (added after passage in
general election Nov. 3, 1998) available at
www.hawaii.gov/lrb/con/condoc.html, "To be valid or recognized in this
State, a marriage may exist only between one man and one woman." Alaska
Const., Art. I, sec. 25 (added after passage in general election Nov. 3,
1998) available at http://www.gov.state.ak.us/ltgov/akcon/table.html.
# Baker, 744 A.2d at 870-71.
# This Act is available online at www.sec.state.vt.us/civilunionlaw.htm.
# Baker v. State, 744 A.2d 864 (Vt. 1999).
# By November 2002, 4,979 licenses had been issued for civil unions. Of
these 4,203 were issued to out-of-state residents. Demian, Civil Unions:
the Vermont Approach, available at <www.buddybuddy.com/d-p-verm.html>.
# Greg Abbott, Attorney General of Texas, Press Release Judge Vacates
Order in Beaumont Divorce Case After Attorney General Abbott Intervenes
(Mar. 28, 2003) available at <www.oag.state.tx.us/newspubs/
releases/2003/20030328samesex.shtml>; Langan v. St. Vincent's Hosp. of
N.Y., Index 11618 (Nassau Cty. Sup. Ct., N.Y. 2003). Pleadings and order
available at <www.marriagewatch.org/cases/ny/langan/langan.htm>; Judge
Amends Controversial Lesbian Divorce (Dec. 31, 2003) at
<www.gaywired.com>.Alons et al. v. Judge of the Iowa Dist. Ct. for Woodbury
Cty, 03-1982 (Iowa App. Ct 2003); Burns v. Burns, 560 S.E.2d 47, 48
(Ga.App. 2002) (civil union not recognized in Georgia to avoid application
of custody provision regarding cohabitation); and Rosengarten v. Downes,
802 A.2d 170 (Conn. App 2002) (civil union not recognized, and therefore no
basis for dissolution).
# 798 N.E.2d 941 (Mass. 2003).
# ___ U.S. ___, 123 S.Ct. 2472 (2003).
# 798 N.E.2d 973 (Mass. 2003) (Greaney J. concurring).
# See Supreme Judicial Court for the Commonwealth, Opinion of the Justices
to the Senate, SJC-09163 at <
http://news.findlaw.com/cnn/docs/conlaw/maglmarriage20304.html >.
# Rick Kline, Gridlock in Marriage Debate, The Boston Globe (Feb. 13,
2004) at
<http://www.boston.com/news/specials/gay_marriage/articles/2004/02/13/gridlock_in_marriage_debate/>.
# Id.
# Morrison et al. v. Sadler et al., Complaint, Docket No.
49D11-0208-PL-001946 (Marion Cty. Super. Ct. decided May 7, 2003),
pleadings and trial court order at Marriage Watch
<http://www.marriagewatch.org/cases/in/morrison/morrison.htm>.
# Lewis et al. v. Harris, Amended Complaint, Docket No. L-00-4233-02
(N.J. Super. Ct. Law Div. filed Oct. 8, 2002) available at <
http://www.lambdalegal.org/binary-data/LAMBDA_PDF/pdf/135.pdf>. See also
Joseph Dee, Local Officials Weigh Same-sex Marriages, The Times (March 7,
2004) (discussing public officials responses to trial court ruling that
state constitution did not require recognition of same-sex marriage) at
<http://www.nj.com/news/times/index.ssf?/base/news-1/107865413039822.xml>.
On Monday, a New Jersey Mayor performed a ceremony for a lesbian couple
after Shore Town issued a marriage license to the couple in contradict to
the trial court ruling in that state. The mayor announced the city's
intention to continue to defy the court until order otherwise. The state
attorney general has responded that he will seek a court order that the
city stop its unlawful conduct. Joseph A. Gambardello et al., Shore Town
is First in N.J. to Let Gays Marry, The Philadelphia Inquirer (March 9,
2004) at <http://www.philly.com/mld/inquirer/news/front/8138474.htm>.
# Standhardt v. Superior Court, 77 P.3d 451 (Ariz. App. 2003). Matthew
Hale, Listening to the Supremes: Gay couple brings marriage case to AZ
Supreme Court, Echo Mag. (Dec. 19, 2003) at
http://legalminds.lp.findlaw.com/list/queerlaw/msg05458.html.
# San Francisco Mayor's Letter to County Clerk Re: Issuing Marriage
Licenses <http://news.findlaw.com/hdocs/docs/glrts/sfmayor21004ltr.html>.
# Cal. Family Code §308.5 and Family Code §300-01.
# Vivram David Amar, The California Constitution and Same-Sex Marriage:
Even if California's Anti-Gay-Marriage Statutes Violates the State
Constitution, San Francisco Was Still Wrong Not to Wait for the Courts
(March 5, 2004) at <http://writ.news.findlaw.com/amar/20040305.html>.
# Alison Soltau, Battle Continues in Court, San Francisco Examiner (March
8, 2004) at
<http://www.sfexaminer.com/article/index.cfm/i/030804n_gaymarriage>.
# Lorna Benson, Gay Marriage Amidst National Debate on Same-Sex Unions at
<http://news.mpr.org/features/2004/02/26_bensonl_married/>.
# New Mexico Clerk Publicly Rebuked for Issuing Gay Marriage
Licenses (Feb. 24, 2004) (66 marriage licenses issued to same sex couples
before attorney general issued opinion that such licenses would be invalid)
at <http://www.365gay.com/newscon04/02/022404nmFolo.htm>.
# Thomas J. Lueck, Police Charge New Paltz Mayor for Marrying Same-Sex
Couples, The New York Times (March 3, 2004) at
http://www.nytimes.com/2004/03/03/nyregion/03wed..
# Thomas Crampton, Unitarian Ministers Defy Authorities by Conducting
Same-Sex Weddings in New Paltz, The New York Times (March 7, 2004) at
<http://www.nytimes.com/2004/03/07/nyregion/07gay.html>.
# Hernandez et al., v. Robles, Sup. Ct. of N.Y. filed on March 5,
2006. Complaint available at
http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=1461. See
also Robert D. McFadden, Bloomberg Said to Want State to Legalize Same-Sex
Marriages, The New York Times (March 6, 2004) at
<http://www.nytimes.com/2004/03/06/nyregion/06GAY.html>.
# David Law, Same-sex Marriages Stave Off Injunction, Statesman Journal.com
(March 9, 2004) at <http://news.statesmanjournal.com/article.cfm?i=76737>
and David Austin et al, The Marriage Brokers, The Oregonian (March 7,
2004) at
<http://www.oregonlive.com/news/oregonian/index.ssf?/base/front_page/1078664370255730.xml>,.
# William McCall, Same sex Marriages Prompt Suit, StatesmanJournal.com
(March 6, 2004) <http://news.statesmanjournal.com/article_print.cfm?i=76540>.
# David Law, Same-sex Marriages Stave Off Injunction, Statesman
Journal.com (March 9, 2004) at
<http://news.statesmanjournal.com/article.cfm?i=76737>.
# West Va. Supreme Court Asked to Okay Same Sex Marriage Licenses (Mar. 5,
2004) at
<http://www.dailypress.com/news/local/virginia/dp-sou--gaymarriage-w.va0305mar05,0,3303467.story?coll=dp-headlines-virginia>.
# Ann Rostow, Gay Couples Sue in L.A., Fla. To Marry (Feb. 26, 2004) at
<http://www.gay.com/news/article.html?2004/02/26/4>.
# Jon Brunning, Attorney General for the State of Nebraska, "Judicial
Activism vs. Democracy: What are the National Implications of the
Massachusetts Goodridge Decision and the Judicial Invalidation of
Traditional Marriage Laws? Testimony before The United States Senate
Subcommittee on the Constitution, Civil Rights, and Property Rights (March
3, 2004) available at
<http://judiciary.senate.gov/testimony.cfm?id=1072&wit_id=3073>.
# Lynn Marshall and Elizabeth Mehren, Same Sex Marriage Battle Moves to
Seattle, L.A. Times (Mar. 9, 2004) at
<http://www.latimes.com/news/nationworld/nation/la-na-marriage9mar09,1,2317112.story?coll=la-home-nation>.
# Maggie Gallagher & Joshua K. Baker, Do Mothers and Fathers Matter? (Feb.
27, 2004) at
<http://www.marriagedebate.com/home_includes/Do%20Mothers%20and%20Fathers%20Matter.pdf>.
# Strategies for Public Health: A Compendium of Ideas, Experience and
Research from Minnesota's Public Health Professionals (2002) in Unintended
Pregnancy at 3 available at
<http://www.health.state.mn.us/strategies/unintended.pdf>.
# See Robert P. George & Gerard P. Bradley, Marriage and the Liberal
Imagination, 84 Geo. L. J. 301 (1995).
# In Halpern v. Toronto (City), 2003 WL 34950 (C.A. 2003) the Ontario
Court of Appeals held that the dignity of persons in same-sex relationships
is violated by the exclusion of same-sex couples from the institution of
marriage. In EGALE Canada Inc. v. Canada (Attorney General), 2003 WL
30943 (B.C. C.A. 2003), the Court of Appeals for British Columbia ruled
that the Canadian Charter of Rights and Freedoms compelled recognition of
same-sex marriage.
# John-Henry Westen, Religious Persecution Next? Catholic World News at
http://www.cwnews.com/news/viewstory.cfm?recnum=26363.
# Irish Times, August 2, 2003.
# Washington Post, January 3, 2004.
# See Robert Knight, When You Hear of Civil Unions Recall Czechoslovakia,
Sweden (March 3, 2004)at
<http://worldnetdaily.com/news/article.asp?ARTICLE_ID=37410>.
# Id.
--
Steven Montgomery
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