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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