The Future of the Family: The Social and Legal Impacts of Legalizing Same-Sex Marriage By Lynn D. Wardle Bruce C. Hafen Professor of Law J. Reuben Clark Law School Brigham Young University 10 October 2014 Symposium on the Future of Families and of Family Law at J. Reuben Clark Law School Brigham Young University Playing at BYU in the de Jong Concert Hall October 22-25, 2014 I. Introduction -Marriage and family forms, structures, relationships and meanings have changed and are changing significantly in American society and law. Similarly, as both an effect and partial cause of these social changes, family law, likewise, is turbulent and confused. -I compare and contrast the movement to legalize same-sex marriage with the movement to invalidate anti-miscegenation laws, to recognize “palimony” (quasi-spousal financial rights), and to legalize abortion-on-demand. That is: Loving v. Virginia, 388 U.S. 1 (1967), Marvin v. Marvin, 557 P.2d 106 (Cal. 1976) and Roe v. Wade, 410 U.S. 113 (1973). -I conclude that in some very critical ways, judicial legalization of same-sex marriage is more like Roe than Loving or Marvin, and that it would achieve the most lasting, effective, and legitimate law reform if it were to follow the state-by-state (preferably legislative) reform process. II. Trends Indicating Significant Changes in Families and Family Law (A Decrease in Social Recognition of the Value of, and in Social Commitment to, Marriage and Marital Families Some Trends of Concern: • Child-bearing Out of Wedlock (40%) & single-parenting • Cohabitation • Decreased Commitment to Marriage • High Divorce Rate • Demographic Winter • Decreasing International Adoption • Same-sex Marriage Deterioration of Marital Families -Today, almost half of children in single-mother homes live with never-married mothers; four decades ago, that figure was one in 16, oneseventh of today’s figure. -The percentage of unmarried couples living together has increased ten-fold, from slightly more than one percent of all couples in 1960 to nearly 12 percent in 2011. Nearly 12% of Couples are Cohabiting Without Marriage http://familyfacts.org/charts/110/nearly-12-percent-of-couples-living-together-are-unmarried (seen 7 October 2014), citing U.S. Census Bureau, Current Population Survey, 2010. Table 1. Unmarried Cohabitants in USA, 19702010 Year 1970 1980 1990 2000 2006 2010 Unm’d P Hhlds 523,000 1,589,000 3,668,000 5,500,000 6,017,462 7,700,000 % Hhlds 0.8% 2.0% 3.1% 4.3% 5.4% >10.1% The Annual marriage rate has declined Significantly in the past generation Today, the marriage rate-the annual number of marriages per 1,000 unmarried women- is less than half of what it was four decades ago. http://familyfacts.org/charts/105/the-annual-marriage-rate-has-declined-significantly-in-the-past-generation (141007) NUMBER OF MARRIAGES PER 1,000 WOMEN, AGE 15 AND OLDER The Age of Marriage Has Risen Steadily Since 1960 for Both Men and Women http://familyfacts.org/charts/102/men-and-women-are-marrying-later (seen 7 October 2014) Percent of Married Adults, Age 14+ http://familyfacts.org/charts/150/the-proportion-of-married-adults-hasdecreased (seen 7 October 2014) Recent marriages are slightly more lasting for men Nearly 77 percent of men married for the first time in the early 1990s reached their 10th anniversary, three percentage points higher than men married in the early 1980s. http://familyfacts.org/charts/161/recent-marriages-are-slightly-more-lasting-for-men (141007) MEN REACHING 10TH AND 20TH WEDDING ANNIVERSARIES FOR FIRST MARRIAGES Recent marriages are slightly more lasting for women Nearly 75 percent of women married for the first time in the early 1990s reached their 10th anniversary, nearly four percentage points higher than women married in the mid-1970s. http://familyfacts.org/charts/160/recent-marriages-are-lasting-longer (141007) WOMEN REACHING 10TH AND 20TH WEDDING ANNIVERSARIES FOR FIRST MARRIAGES Pew (2011): Marriage Has Dropped In Importance for Young Adults in US Wendy Want & Paul Taylor, For Millennials, Parenthood Trumps Marriage, Pew Research Center, available at http://pewresearch.org/pubs/1920/millennials-value-parenthood-over-marriage (seen 14 March 2011). U.S. CHILDREN BORN OUT OF WEDLOCK 1940-2010 Year All Races Number Rate/1000 live births White Number Rate/1000 live births Non-White Number Rate/1000 live births 1940 89,500 38 40,300 19.5 49,200 168.3 1950 141,600 40 53,500 17.5 88,100 179.6 1960 224,300 53 82,500 22.9 141,800 215.8 1970 398,700 107 175,100 56.6 223,600 349.3 1980 665,747 184 320,063 110.4 345,684 484.5 1990 1,165,400 266 647,400 169 472,700 bl 667 bl 2000 1,347,000 332 866,000 271 427,000 bl 685 bl 2005 1,527,000 369 -- 317 -- 693 bl 2007 1,714,600 397 -- -- -- -- 2008 -- 410 -- -- -- -- 2010 -- 408 -- -- -- -- Birth Rate for Unmarried Nearly Rate for Married Women The gap between married and unmarried birth rates has narrowed, The Heritage Foundation, 2011, at http://familyfacts.org/charts/213/the-gap-between-married-and-unmarried-birth-rates-has-narrowed . Fig. 1. Percentage of US Children born out of marriage Source: http://familyfacts.org/charts/205/more-than-four-in-10-children-are-born-tounwed-mothers (citing U.S. Census Bureau, National Center for Health Statistics, 2010.) Almost half of children in single-mother homes live with never-married mothers Nearly one in two children in single-mother homes live with mothers who have never been married. Four decades ago, that figure was one in 16, one-seventh of today’s figure. http://familyfacts.org/charts/145/almost-half-of-children-in-single-mother-homes-live-with-never-married-mothers (141007) LIVING ARRANGEMENTS OF CHILDREN LIVING IN MOTHER-ONLY HOUSEHOLDS SINCE 1968 REDUCTION OF CHILDBEARING: Due to low fertility rates, a “demographic winter” is descending upon affluent nations. British historian Niall Ferguson calls this imminent demographic change “the greatest sustained reduction in European population since the Black Death of the 14th Century.” Births are below replacement level (2.1 births per couple) in over 70 nations. The Organization for Economic Cooperation and Development (OECD) reports that none of the nations of Europe can maintain their population (necessary for economic sustainability) through births, that only France, (with a birth rate of 1.8) has the possibility to do so. In fifteen European nations the rate of fertility is 1.3 or below, -(a birthrate of 1.4 or 1.5 means that the population will decrease by one-third each generation). The United Nations Report on World Populating Ageing 1950-2050 notes: “[T]he average total fertility rate in the more developed regions [of the world] has dropped from an already low level of 2.8 children per woman in 1950-1955 to an extremely low level of 1.5 children per woman in 2000-2005. Presently, the total fertility rate is below the replacement level in practically all industrialized countries. In 19 of those countries, the rate is under 1.3 children per woman.” Source: W. Bradford Wilcox & Elizabeth Marquardt, The State of Our Union; Marriage in America 2010 (2010)at p. 21. Number of divorces per 1,000 married women (age 15+) http://familyfacts.org/charts/120/the-divorce-rate-is-declining-but-still-high Nearly one-third of Americans born in the 1950s had divorced by age 45 http://familyfacts.org/charts/165/by-age-45-about-one-in-three-americans-born-in-the-1950s-had-divored (141007) Over ¼ of American Children < Eighteen Years-Old Living With a Single Parent Familyfacts at http://familyfacts.org/charts/135/more-than-one-in-four-children-live-in-a-single-parenthome (141007) More than half of all African-American chlidren live in a single-parent home Since 1960, the percentage of African-American children living in single-parent homes has more than doubled, from 22 percent to 53 percent. http://familyfacts.org/charts/171/more-than-half-of-all-african-american-childrenlive-in-a-single-parent-home (141007) BLACK CHILDREN'S LIVING ARRANGEMENTS More than one in five white children lives in a single-parent home Since 1960, the percentage of white children living in single-parent homes has increased from 7 percent to nearly 23 percent. http://familyfacts.org/charts/170/more-than-one-in-five-white-children-lives-in-a-single-parent-home (141007) WHITE CHILDREN'S LIVING ARRANGEMENTS Despite recent declines, about two-thirds of children live with their married biological or adoptive parents http://familyfacts.org/charts/140/despite-recent-decline-two-thirds-of-children-live-with-married-parents- (viewed 7 October 2014) Figure 1: Trends in Intercountry Adoption to 23 Receiving States, 2001-2010 Peter Selman, Global Trends in Intercountry Adoption: 2001-2010, National Council for Adoption, Adoption Advocate, No. 44, February 2012. (Figure 1 & Tables 2-4 herein) Table 1 Intercountry Adoptions in the USA from All Foreign Countries Combined, 1999-2011 Year: Number: 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 Total 1999 – 2011 15,719 18,857 19,647 21,467 21,654 22,991 22,734 20,680 19,608 17,456 12,744 11,058 9,319 233,934 + + + + + (-) (-) (-) (-) *FIRST YEAR US FULLY FOLLOWS HCIA (-) (-) (-) About 2/3 = females About 40% under 1 year old, about 35% 1-2 years old, about 25% = 3-17 years old. Source: U.S. Department of State, Bureau of Consular Affairs, Intercountry Adoption, Year 2011 Annual Report, available at http://adoption.state.gov/about_us/statistics.php (seen 6 April 2012). State Same-Sex Marriage Laws: Legislatures and Courts Source: National Conference of State Legislatures, States that Allow Same-Sex Marriage, September 7, 2014, available at http://www.ncsl.org/research/human-services/same-sex-marriage-laws.aspx (last viewed 7 October 2014). (ORDER LIST: 574 U.S.) MONDAY, OCTOBER 6, 2014 CERTIORARI DENIED .... 14-124 HERBERT, GOV. OF UT, ET AL. V. KITCHEN, DEREK, ET AL. Source: http://www.supremecourt.gov/orders/courtord ers/100614zor.pdf (viewed 7 October 2014) USA Today, 7 October 2014 USA Today, 7 October 2014 USA Today, 7 October 2014 (Balance of 31 states that adopted Constitutional Amendments Banning SSM) Source: Washington Post 141007 http://www.washingtonpost.com/wpsrv/special/politics/same-sex-marriage/ (141007) Recent Developments This week, on Monday, October 6, 2014, the Supreme Court denied petitions for writ of certiorari filed by five states in five separate cases in which lower federal courts had ruled that those states (Utah, Virginia, Oklahoma, Wisconsin, and Indiana) were constitutionally required to legalize same-sex marriage. The next day the Ninth Circuit further mandated samesex marriage in Idaho and Nevada, but Justice Kennedy has stayed that order. Nearly 2/3 of SSCs Live in States Where SSM Allowed (as of 141006) U.S. Supreme Court Decision Opens Marriage …. The Williams Institute (141007) Gay issues find increasing acceptance March 2014 Post-ABC Poll • Q: Overall, do you support or oppose allowing gays and lesbians to marry legally? – SUPPORT – OPPOSE • 59% 34% Q: Regardless of your own preference on the issue, do you think that the part of the U.S. Constitution providing Americans with equal protection under the law does or does not give gays and lesbians the legal right to marry? – DOES 50% – DOES NOT 41% • Q: Do you favor or oppose allowing gay or lesbian couples to adopt a child? – FAVOR – OPPOSE • 61% 34% Q: In general, do you think gay people can be as good parents as straight people, or not? – YES, CAN BE AS GOOD 78% – NO, CANNOT BE AS GOOD 18% Source: http://www.washingtonpost.com/page/20102019/WashingtonPost/2014/03/05/National-Politics/Polling/release_301.xml Changing Attitudes on Gay Marriage, Pew Research Religion & Public Life Project, 24 September 2014, available at http://www.pewforum.org/2014/09/24/graphics-slideshow-changing-attitudes-on-gay-marriage/ (viewed 7 October 2014). Changing Attitudes on Gay Marriage, Pew Research Religion & Public Life Project, 24 September 2014, available at http://www.pewforum.org/2014/09/24/graphics-slideshowchanging-attitudes-on-gay-marriage/ (viewed 7 October 2014). Source: Washington Post 141007 http://www.washingtonpost.com/wpsrv/special/politics/same-sexmarriage/ (141007) Source: Washington Post 141007 http://www.washingtonpost.com/wpsrv/special/politics/same-sexmarriage/ (141007) Source: Washington Post 141007 http://www.washingtonpost.com/wpsrv/special/politics/same-sexmarriage/ (141007) Marriage is the Key The core, connecting, underlying problem - the cornerstone- concerns marriage, the disintegration of marriage and of the concept of marriage and marital families. “It is marriage that makes all the difference.” – Baroness Ruth Deech (House of Lords) III. The Unique Public Value of Marriage Between A Man and A Woman -Keep focus on objective public interests, not subjective personal interests. -Dual Gender Marriage society's interests in the public welfare concerning (1) safe sexual relations, (2) procreation and childrearing, (3) the status of women, (4) the stability, strength, and security of the family union, (5) the integrity of the basic unit of society, (6) civic virtue and public morality, (7) interjurisdictional comity, and (8) government efficiency. IV. Distinguishing Three Cases and No-Fault Law Reform from Same-Sex Marriage Loving v. Virginia (based on constitutional Civil War amendments) -“Approximately one in four soldiers that went to war [in the American Civil War] never returned home.” -“Roughly 2% of the population, an estimated 620,000 men, lost their lives in the line of duty. Taken as a percentage of today’s population, the [death] toll would have risen to as high as 6 million souls.” -The total casualties in the Civil War (soldiers who died, were wounded, were captured, or were missing) was nearly 1.5 million men. -No question that the issue was decided as a matter of law (though long delay in full implementation!). - A similar super-consensus for same-sex marriage is lacking. -Justice Ginsburg (VMI): “[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.” (quoting Ballard v. United States). Marvin v. Marvin (state court, state-by-state) Roe v. Wade (most sustained scholarly/public criticism; still dubious opinion; still illegitimate judgment) Yale Law School Professor Alexander Bickel commented: “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Harvard Law School Professor (and Watergate Special Prosecutor) Archibald Cox wrote: “the [Roe] opinion fails even to consider what I would suppose to be the most compelling interest of the state in prohibiting abortion: the interest in maintaining respect for the paramount sanctity of human life which has always been at the center of western civilization . . . .” Liberal Professor Mark V. Tushnet wrote: “It seems to be generally agreed that, as a matter of simple craft, Justice Blackmun's opinion for the Court was dreadful.” Fordham Law School Professor Robert Byrn wrote: “Roe v. Wade is in the worst tradition of a tragic judicial aberration that periodically wounds American jurisprudence . . . .” Professor John Hart Ely accused the Supreme Court of “mistak[ing] a definition for a syllogism,” and declared: “[Roe] is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” University of Chicago Professor Richard Epstein criticized: “Roe v. Wade is symptomatic of the analytical poverty possible in constitutional litigation.” No-Fault Divorce Reform (1969-77) State-by-State Legislative Reform in nearly half the states. In nearly all states (49 states) by 1985. Controversial, contested but not bitter because the democratic process allowed all to participate in the policy formation. No lasting-lingering hostility or resentment. General social acceptance (and move-on). V. Conclusion: The Past Is Prologue -Which approach the courts will take will have significant implications for how the issue ultimately is resolved and how it is received by the people of America, especially those who disagree with the policy position imposed by judicial decision. -Grass-roots (state court) initiated legislative family law reforms (like Marvin) have the best likelihood of success. Form and substance are linked in family law. -Imprudent, impulsive or impatient judicial action (ala Roe v. Wade) may complicate the process of resolving the issue, delay the social outcome, provoke long-lasting hostility, and diminish respect for the courts in the process. THANK YOU!