There is little doubt that the legislature has the power to engage in such social engineering if it chooses to do so. Such official affirmation of homosexual conduct would be a way for politicians to appease the two to three percent of the population who self-identify as “gay” or “lesbian” and placate others who do not grasp the implications of this massive social change.

But same-sex “marriage” is not being sold as a political payoff, or even (primarily) as a social service providing a package of legal and financial benefits to this population. Instead, advocates of redefining marriage argue that a belief in “civil rights” and “equality” actually compel such a radical redefinition of our most fundamental social institution.

Yet it was only six years ago that the state’s Supreme Court, in the case of Andersen v. King County, rejected such arguments in upholding the 1998 Defense of Marriage Act.

Justice (now Chief Justice) Barbara Madsen pointed out in her majority opinion that while the U. S. Supreme Court has declared marriage to be a “fundamental right,” it has done so only in the context of marriages between a man and a woman, since they relate to “procreation and the survival of the human race.”

In his concurrence, Justice James M. Johnson noted that the only “inequality” in the current law is between different types of couples, not individuals. “Professed homosexuals, like all Washingtonians, are clearly allowed to marry in Washington.” Yet all individuals also face limits on their choice of marriage partner: “A person may not marry someone under age 17, may not marry if already married, may not marry a close relative, and may not marry if ‘the parties are persons other than a male and a female.’ The last prohibition, like the bigamy/polygamy prohibition, is definitional.”

There is no question that opposite-sex couples are unique; as Justice Madsen noted, “[N]o other relationship has the potential to create, without third party involvement, a child biologically related to both parents.” The link between marriage and procreation “is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple’s willingness or ability to procreate,” nor by the fact that some same-sex couples raise children; “Such over- or under-inclusiveness does not defeat finding a rational basis” for treating opposite-sex couples uniquely.

Marriage serves not only to encourage the potentially procreative relationships of opposite-sex couples, but also to regulate them. Justice Madsen quoted a 2005 Indiana court decision which noted that procreation is sometimes accidental: “[The] institution of opposite-sex marriage both encourages such couples to enter into a stable relationship before having children and to remain in such a relationship if children arrive during the marriage unexpectedly.”

Not only are opposite-sex couples the only ones capable of natural procreation, but they also provide the best environment for child-rearing. As Justice Johnson wrote: “The legislature was offered evidence that children tend to thrive best in families consisting of mothers, fathers, and their biological children. … Direct comparisons between opposite-sex homes and same-sex homes further support the former as a better environment for children. For example, studies show an average shorter term commitment and more sexual partners for same-sex couples.”

Advocates of same-sex “marriage” regularly confuse one of the personal reasons why individual couples choose to marry – to express love and commitment – with the public purposes of marriage as a social institution. Justice Madsen was blunt in noting that “the right to marry is not grounded in the State’s interest in promoting loving, committed relationships. While desirable, nowhere in any marriage statute of this state has the legislature expressed this goal.”

Some people argue that other changes in the institution of marriage, as well as technologies which have separated sexual relations from procreation, mean that the historic definition of marriage can be abandoned. But as Justice Johnson noted, quoting a brief submitted by Families Northwest, “[W]idespread contraceptive and abortion rights may actually make more salient, not less, the traditional role of marriage in encouraging men and women to make the next generation that society needs. The more … choice individuals have about whether or not to have children, the more need there is for a social institution that encourages men and women to have babies together, and creates the conditions under which those children are likely to get the best care.”

In 2006, Justice Madsen said for the court, “We conclude that limiting marriage to opposite sex-couples furthers the State’s interests in procreation and encouraging families with a mother and father and children biologically related to both.”

The legislature would be wise to conclude the same today.

Today (Monday, September 19), Broadway will be the scene of a star-studded “staged reading” of a new play–one based on the transcript of the trial in the case of Perry v. Schwarzenegger (now known as Perry v. Brown). The unprecedented trial, presided over by the (then closeted, now “out”) homosexual judge Vaughn Walker, resulted in Walker’s opinion in August 2010 declaring that the male-female definition of marriage violates the U. S. Constitution. The ruling is currently on appeal in the Ninth Circuit.

Yet the testimony of one of the actual plaintiffs in the case, Sandra Stier, undermines the argument by same-sex “marriage” advocates that “gay people are denied the fundamental right to marry just because of ‘who they are.’” It also directly contradicts Judge Walker’s “finding of fact” number 51: “Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.” In fact, Stier’s testimony undermines two of the most fundamental premises of the entire homosexual movement–the claims that people are “born gay,” and that a person’s sexual orientation can never change.

Stier testified that she was married–to a man–for twelve years, and had two biological children with him. Even more startling is her admission that she did not “learn” that she was a lesbian until she was in “her mid-thirties.”

Part 1 of this post featured the beginning of attorney Ted Olson’s direct examination of Stier, dealing with her marriage to her husband.

This, Part 2, features Stier’s testimony about her relationship with her current lesbian partner, Kristin Perry.

Stier’s testimony appears in bold; [my editorial comments are in bracket and italics].

Perry v. Schwarzenegger

Trial—Day 1

1/11/2010 9:00:00 AM

Transcript pp. 163-167

. . . .

Q. When did you meet Ms. Perry?

A. I met Kris around 1996.

Q. And how did your relationship with her develop? And – go ahead.

A. Well, when I first met Kris, of course, I hadn’t known her previously. I was teaching a computer class and she was a student in my class. So I just sort of knew of her, but then we started working together on projects at work and ended up being coworkers and became fast friends quite quickly. And we were friends for quite some time and I began to realize that the feelings I had for her were really unique and different from friends, feelings I normally had towards friends. And they were absolutely taking over my thoughts and my — sort of my entire self. And I grew to realize I had a very strong attraction to her and, indeed, I was falling in love with her.

Q. And tell us when you realized finally that you had fallen in love with her?

A. I really — I realized that in 1999, early in the year.

[Other anecdotal accounts of lesbian relationships suggest that this pattern is fairly typical—they begin as friendships which grow more and more intimate emotionally, and only at the end become sexual. She does not report that she looked at her partner and immediately—or even quickly—felt a strong sexual attraction to her. Again, this undermines the claim that all lesbians have an innate “orientation” which makes them sexually attracted to women in general.]

Q. Did your falling in love with Kris have anything to do with the dissolution of your marriage?

A. My marriage was troubled on many fronts and had been in a very, very difficult state. And the end of my marriage was precipitated by my own extreme unhappiness, my ex-husband’s severe problems with alcohol and his inability to provide the type of support as a husband and a family person that I had to have.

[Since Stier realized “in 1999, early in the year” that she was “in love with” Kristin Perry, and her marriage also ended in 1999, it is somewhat difficult to give credence to this denial, whatever difficulties her husband may have had. Advocates of same-sex “marriage” often ask, “What harm could same-sex marriage do to your marriage?” In the case of Stier’s marriage, it appears that society’s growing acceptance of homosexual relationships may have made it easier for her to leave her husband. If same-sex “marriage” were legalized, and it were possible to go directly from a heterosexual marriage to a homosexual one, the incentive to break up the first marriage might be even greater. This—the breakup of some existing opposite-sex marriages—is a potential harm of same-sex “marriage” which is very real. However, it is impossible to predict in advance who will experience it.]

Q. Did your sexual orientation or your discovery of your sexual orientation have anything to do with the dissolution of that marriage?

A. No, it did not.

[Again, this is a fascinating admission. It would seem more consistent with typical homosexual propaganda for her to say, as noted above, “I realized I was living a lie,” or “I decided it was time to be who I really am.”

Judge Walker supported his Finding 51 with testimony from a witness who stated:

“Some gay men and lesbians have married members of the opposite sex, but many of those marriages dissolve, and some of them experience considerable problems simply because one of the partners is gay or lesbian. A gay or lesbian person marrying a person of the opposite sex is likely to create a great deal of conflict and tension in the relationship.”

Yet Sandra Stier’s testimony clearly does not support this theory. She states flatly that her “discovery of [her] sexual orientation” did not “have anything to do with the dissolution of that marriage.” The implication seems to be that if her husband had not had “severe problems with alcohol” and had been able “to provide the type of support as a husband and a family person” that she needed; and if she had not met and fallen “in love with” Kristin Perry; she might well have remained married to her husband until his death, never “learning” that she was “gay.”]

Q. Your husband is no longer living, is that correct?

A. That’s true.

Q. Then tell us about how your relationship with Ms. Perry developed?

A. Well, my relationship with Kris, the romantic part of the relationship certainly started for me in a — just a very exciting place. I had never experienced falling in love before, and I think –

Q. Are you saying that you weren’t in love with your husband?

A. I was not in love with my husband, no.

Q. Did you think that you were at some point?

A. I had a hard time relating to the concept of being in love when I was married to my husband. And while I did love him when I married him, I honestly just couldn’t relate when people said they were in love. I thought they were overstating their feelings and maybe making a really big deal out of something. It didn’t really make sense to me. It seemed dramatic. You know, when you grow up in the midwest and in a farming family — which is a really unique way to grow up, if anybody knows much about that — but there is a pragmatism that is inherent and it’s part of the fabric of life and an understated way of being that is just pervasive in terms of your development. And I remember as a young girl talking to my mom about love and marriage and she would say, “You know, marriage is more than romantic love. It’s more than excitement. It’s an enduring long-term commitment and it’s hard work.” And in my family that seemed very true.

(Laughter.)

[It saddens me that there was laughter in the courtroom at the statement that “[marriage is] an enduring long-term commitment and it’s hard work.” Truer words were never spoken—even with couples who were madly in love when they first married, and even with couples who still are.]

So I really thought that was what I was kind of signing up for when I got married; not that it would be bad, but that it would be hard work and I would grow into that love, and that I needed to marry a good, solid person and I would grow into something like my parents had, which was really a lovely marriage and still is.

[I am glad that she says that her mother and father’s marriage—presumably one that modeled that “enduring long-term commitment” and “hard work”—“was really a lovely marriage and still is.” It was also a fruitful one—without the natural procreation possible only in opposite-sex relationships, Ms. Stier’s life would never have begun. It is simply obtuse to deny that this is the central reason why marriage is a public institution, and why it is defined as a male-female union.]

Q. And then you were — I interrupted you. You were in the midst of describing what happened in terms of your own feelings as your relationship with Ms. Perry developed?

A. Well, with Kris my — so we have this wonderfully romantic relationship and — that just really grew and blossomed very beautifully. And not only were we in love, but we wanted – we realized fairly soon that we wanted to build a life together. We wanted to join our families and live as a family. That we didn’t want to date. I was 36 or 37 years old, and Kris is a tiny about it younger than me, but we really wanted to build a family together and have that kind of life of commitment and stability that we both really appreciated.

Q. How convinced are you that you are gay? You’ve lived with a husband. You said you loved him. Some people might say, Well, it’s this and then it’s that and it could be this again. Answer that.

A. Well, I’m convinced, because at 47 years old I have fallen in love one time and it’s with Kris. And our love is — it’s a blend of many things. It’s physical attraction. It’s romantic attraction. It’s a strong commitment. It’s intellectual bonding and emotional bonding. For me, it just isn’t love. I really, quite frankly, don’t know what that would be for adults. I don’t know what else to say about it.

[She “has fallen in love one time and it’s with Kris.” This seems a rather limited data point on which to base any claim that she has an innate lesbian identity—an enduring pattern of sexual attraction toward other women.]

Q. Why are you a plaintiff in this case?

A. Well, I’m a plaintiff in this case because I would like to get married, and I would like to marry the person that I choose and that is Kris Perry. She is a woman. And according to California law right now, we can’t get married, and I want to get married.

[This is a succinct and accurate statement of her situation under the current law. And some people—people who feel there is nothing morally wrong with engaging in homosexual conduct; that the definition of marriage has nothing to do with the procreative potential of opposite-sex relationships; that being raised by both their mother and father provides no advantage to children; and that changing the definition of marriage would have no impact at all on the institution of marriage—may sympathize with it and wish to see Stier’s desire to marry Perry be fulfilled.

However, this provides no basis whatsoever for claiming that California’s definition of marriage violates the United States Constitution. Thwarting a person’s desires is not at all the same as violating a person’s constitutional rights.] 

The Perry case is the federal constitutional challenge to Proposition 8, the state constitutional amendment defining marriage as the union of a man and a woman which was adopted by California voters in 2008. The unprecedented trial, presided over by the (then closeted, now “out”) homosexual judge Vaughn Walker, resulted in Walker’s stunningly biased opinion in August 2010 declaring that the male-female definition of marriage violates the U. S. Constitution. The ruling is currently on appeal in the Ninth Circuit—but if upheld by the U. S. Supreme Court, it would force the legalization of same-sex “marriage” on all fifty states (overturning the constitutions of thirty).

The play, titled simply “8,” was written by homosexual writer Dustin Lance Black, who won an Oscar for his screenplay for the biopic “Milk,” about the murdered homosexual San Francisco politician Harvey Milk. Actors Morgan Freeman and John Lithgow will portray attorneys David Boies and Ted Olson, the prominent Democratic and Republican attorneys (respectively) who teamed up to argue the case against Proposition 8. The one-night reading is a fundraiser for the American Foundation for Equal Rights, the organization formed to finance the lawsuit.

Homosexual activists seem convinced that publicizing the transcript of the trial will help persuade the public that Walker’s ruling was correct. Yet in truth, there is much in the transcript that directly contradicts Judge Walker’s opinion and his spurious “findings of fact.”

In particular, the testimony of one of the actual plaintiffs in the case, Sandra Stier, undermines the argument by same-sex “marriage” advocates that “gay people are denied the fundamental right to marry just because of ‘who they are.’” It also directly contradicts Judge Walker’s “finding of fact” number 51: “Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.” In fact, Stier’s testimony undermines two of the most fundamental premises of the entire homosexual movement—the claims that people are “born gay,” and that a person’s sexual orientation can never change.

As Stier made clear in answering Olson’s questioning, she was married—to a man—for twelve years, and had two biological children with him. Even more startling is her admission that she did not “learn” that she was a lesbian until she was in “her mid-thirties.”

Below is the transcript of the beginning of Olson’s direct examination of Stier, dealing with her marriage to her husband. Part 2 of this post will go over Stier’s testimony about her relationship with her current lesbian partner, Kristin Perry.

Stier’s testimony appears in bold; [my editorial comments are in bracket and italics].

Perry v. Schwarzenegger

Trial—Day 1

1/11/2010 9:00:00 AM

Transcript pp. 160-163

PERRY – DIRECT EXAMINATION / OLSON 160

 

THE COURT: Mr. Olson, your next witness.

 

MR. OLSON: Thank you. The plaintiffs would like to call plaintiff Sandra Stier.

 

SANDRA STIER, called as a witness for the Plaintiffs herein, having been first duly sworn, was examined and testified as follows:

 

THE WITNESS: Yes.

 

THE CLERK: Thank you. State your name, please?

 

THE WITNESS: Sandra Belzer Stier.

 

THE CLERK: Spell your last name?

 

THE WITNESS: S-t-i-e-r.

 

THE CLERK: And your first name?

 

THE WITNESS: S-a-n-d-r-a.

 

THE CLERK: Thank you.

 

DIRECT EXAMINATION BY MR. OLSON:

 

Q. Ms. Stier, are you one of the plaintiffs in this lawsuit?

 

A. Yes, I am.

 

Q. Would you describe for us and for the Court your background; where you are from, your age, what you do professionally and your family?

 

A. Well, I — I grew up in the midwest. I grew up on a farm in southern Iowa. I’m 47 years old. My background is, really, I lived in Iowa for my youth. I grew up going to public schools, attended college in Iowa, moved to California right after college, and I now work for Alameda County — or for a county government as an information system director in healthcare systems.

 

Q. And do you — you live with Ms. Perry?

 

A. I do.

 

Q. And tell us about your family?

 

A. Well, our family is a blended family with our four boys. We each bring two biological children to our family and each other.

 

[Here is the first hint that the plaintiffs—both Kristin Perry and Sandra Stier—may not have always been “lesbians.” Both brought to their relationship “biological children.” Unless they were conceived by a sperm donor through artificial insemination, this would suggest that both had been in sexual relationships with men at one time.]

 

Q. And just their general ages?

 

A. Well, our two younger sons are in high school. They are teen-agers. And our two older sons are out of high school, young adults.

 

Q. How would you describe your sexual orientation?

 

A. I’m gay.

 

Q. When did you learn that about yourself?

 

A. I really learned it about myself fairly late in life, in my mid-thirties.

 

[Usually, when homosexual activists are promoting the “born gay, can’t change” myth, they trot out people who say, “I’ve known I was gay all my life.” Yet their plaintiff in this landmark court case admits that she did not “learn” that she was “gay” until her “mid-thirties.” This is an astonishing admission.]

 

Q. Had you been married before at that time?

 

A. Yes, I was married before.

 

Q. You were married to a man?

 

A. Yes, I was.

 

[Here is an important point. Advocates of same-sex “marriage” say things like, “Gay people aren’t allowed to marry,” or, “Why should someone be denied the right to marry because of who they are?” Not only is Sandra Stier not being denied the “right to marry”—she has actually been married in the past. Homosexuals, as individuals, already have exactly the same “right to marry” as any other individual—and subject to the same restrictions (no one may marry a child, a close blood relative, a person who is already married, or—in California and 43 other states—a person of the same sex). The law treats same-sex couples  differently from opposite-sex couples, because a same-sex relationship is not a “marriage”— but all individuals are treated the same in terms of the “fundamental right to marry.”]

 

Q. When did you get married and where did you live?

 

A. I got married in 1987, and we lived most of the — most of that marriage in Alameda, California.

 

Q. And you had no feeling at that point in time married to a man that you were a lesbian?

 

A. At that time I did not.

 

[Another important point. When the subject is raised of people who may experience  same-sex attractions choosing to marry someone of the opposite sex, such unions are denounced by homosexual activists as “repressing who they really are” or “living a lie.” Judge Walker supported Finding 51 by claiming “that for gay men and lesbians, opposite-sex marriage . . . would compel them to negate their sexual orientation and identity.” Stier makes it quite clear that was not the case with her—she had “no feeling” that she was a lesbian, so her marriage to a man did not “negate her sexual orientation and identity.”]

 

Q. And did you have a warm, loving relationship with that individual?

 

A. Umm, I had, unfortunately, a difficult relationship for most of our marriage, but it did start out with the best intentions.

 

Q. Well, did you encounter gay people growing up in Iowa? I’m wondering how this evolved, this — your realization of how you characterize yourself these days. Tell us how that evolved from your youth in Iowa?

 

A. Growing up in Iowa on a farm in the country where the — you know, the small town that I went to high school in had 1500 people and the towns around us were fairly similar. I really had a fairly sheltered upbringing; a good upbringing, but sheltered. We spent most of our time in our home, you know, working with my parents. We didn’t really travel and go to any place that was very different from where I grew up. And I did not know of any gay people. I didn’t even know of gay people or, really, even the concept of a gay lifestyle or sexuality until I was like a teenager.

 

Q. Tell us when you moved to California?

 

A. I moved to California in 1985 when I graduated.

 

THE COURT: Were you married in Iowa before you came to California or were you married after you came to California?

 

THE WITNESS: I moved here in 1985 and got married in 1987. So that was in California.

 

THE COURT: And did you meet your husband in California?

 

THE WITNESS: Yes, I did.

 

BY MR. OLSON:

 

Q. Tell us about that. Did you have a relationship with him for a certain period of time before you got married?

 

A. Yes, I did. We dated for about a year before we got married.

 

[Again, her relationship with her husband developed in a way entirely typical of heterosexual relationships and marriages.]

 

Q. And give us the date, again, of the marriage?

 

A. November 14th, 1987.

 

Q. ’87. And when did the marriage come to an end?

 

A. The marriage came to an end in 1999.

 [Note that the marriage lasted for twelve years. This was not a short, “doomed from the start” type relationship—it even lasted well past the classic “seven-year itch.”

Part 2 of this post will go over Stier’s testimony about her relationship with her current lesbian partner, Kristin Perry.]

In his first interview on the issue since making those comments, Gov. Perry spoke with Family Research Council President Tony Perkins today to addresses the Aspen remarks, discuss the 10th Amendment’s application to marriage, and his support for a federal marriage amendment.

Gov. Perry commented:

“I probably needed to add a few words after that ‘it’s fine with me,’ and that it’s fine with me that a state is using their sovereign rights to decide an issue. Obviously gay marriage is not fine with me. My stance hasn’t changed.”

Listen to the rest of segment covering marriage here.  The unofficial transcript follows the jump below.

To hear the complete interview with Gov. Perry, tune in Friday to Washington Watch Weekly.

For more on the marriage issue, see FRC’s documentary, “The Problem with Same-Sex Marriage.”

TONY PERKINS: You mentioned a moment ago the marriage amendment back in Texas, back in 2005 or, I think it was 2005.

GOV. PERRY: Yes sir, yes sir.

TONY PERKINS: In fact I was down there for a number of those pastors conferences. Worked with you on a couple of occasions as we were promoting that marriage amendment in Texas, so I know where you stand on the issue. But last week you were in Aspen, Colorado, at a Republican governor’s event, and you made some comments regarding New York’s recent passage of same-sex marriage. If I can, I want to quote those words from you that have been circulated, and give you a chance to respond to that.

GOV. PERRY: Sure

TONY PERKINS: You said that, “Our friends in New York six weeks ago passed a statute that said that marriage can be between two people of the same sex and you know what that is New York and that is their business and that is fine with me, that is their call. If you believe in the tenth amendment, stay out of their business”.

GOV. PERRY: Let me just, I probably needed to add a few words after “that’s fine with me” its fine with me that the state is using their sovereign right to decide an issue. Obviously gay marriage is not fine with me, my stance had not changed. I believe marriage is a union between one man and one woman.

My record as governor of Texas reflects that — a very strong commitment to defending traditional marriage, including those efforts of Texas to pass the defense of marriage act, which you were at some of those events where we were promoting the people and state of Texas to go and defend traditional values.

And I might add it overwhelmingly was adopted by seventy-five percent of Texas voters. Again, my comment reflects my recognition that marriage and most issues of the family historically have been decided by the people at the state and local level. That is absolutely the state of law under our constitution.

TONY PERKINS: Well, I agree as an author of nation’s first convent marriage law in the state of Louisiana back when I was in office. I think marriage and family policy is best dealt with at the state level. But the tenth amendment — and I am a strong supporter. I fought the federal government on a number of issues when they were trying to force us to do things.

But when you look at what’s happening on marriage, the real fear is that states like New York will change the definition of marriage for Texas. At that point the states rights argument is lost.

GOV. PERRY: Right and that is the reason that the federal marriage amendment is being offered, it’s that small group of activist judges, and frankly a small handful, if you will, of states, and liberal special interests groups that intend on a redefinition of, if you will, marriage on the nation, for all of us, which I adamantly oppose.

Indeed to not pass the federal marriage amendment would impinge on Texas, and other states not to have marriage forced upon us by these activist judges and special interest groups.

Our constitution was designed to respect states including the amendment process. That is one of the beauties and why I talk about in my book “Fed Up” that we need as a nation to get back to really respecting our constitution and the tenth amendment in particular which allows the states to impede against each other, whether it is on taxes or regulations or litigation and create the economic environment.

But the overall constitutional protection, if you will, by and how we amend our United States Constitution to reflect the values of the nation as whole is very important. Balanced budget amendment, another one of those with all of the debt ceiling talk going on right now. The balanced budget amendment and clearly telling those people in Washington, “look your spending too much money, and one way we protect your human nature, which is to say yes to special interest groups, is to prohibit you from doing that by passing a balanced budget amendment.” And I hope we’ll do that, and I hope we also pass the federal marriage amendment as well.

TONY PERKINS: Governor, we are about out of time but I don’t want to put words in your mouth, but I think I hear what you are saying. The support given what’s happening across the nation, the fear of the courts, the administration’s failure to defend the defense of marriage act.

The only and thin line of protection for those states that have defined marriage, that have been historically been defined between a man and a woman. The support of a marriage amendment is a pro-state’s rights position, because it will defend the rights of states to define marriage as it has been.

GOV. PERRY: Yes sir, and I have long supported the appointment of judges who respect the constitution and the passage of a federal marriage amendment. That amendment defines marriage between one man and one woman, and it protects the states from being told otherwise. It respects the rights of the state by requiring three quarters of a states vote to ratify. It’s really strong medicine but is again our founding fathers had such great wisdom and their wisdom is just as clear and profound today as it was back in the late eighteenth century.

TONY PERKINS: Well Governor Perry I want to thank you from taking time out of your schedule to join us on Washington Watch Radio. I look forward to being with you in Houston, Texas, in Reliant Stadium I look forward to seeing you.

GOV. PERRY: It’s going to be a great day and I look forward to being with you, God speed to you and God bless you.

Reports indicate that efforts are underway to draft expanded “religious exemptions” that could protect the liberty of religious organizations that disapprove of homosexual conduct or of homosexual “marriage.”

It is true that pro-family groups (including FRC) have argued that legalizing homosexual “marriage” would create a threat to religious liberty. The most often cited example is how Catholic Charities was forced out of the adoption business in Massachusetts and the District of Columbia after those jurisdictions legalized homosexual “marriage,” because the group was unwilling to compromise its principles by placing adoptive children with homosexual couples.

But even if religious non-profits like Catholic Charities were to be protected, what about Christians in business, like the wedding photographer in New Mexico who was sued for declining to photograph a homosexual commitment ceremony?

The only kind of religious exemption broad enough to completely protect rights of conscience—one saying, basically, “Any person, organization, or business that does not approve of same-sex ‘marriage’ will not be required to recognize homosexual relationships as ‘marriages’”—would be completely unacceptable to the advocates of homosexual “marriage.” Forcing the rest of society to affirm and celebrate homosexual relationships is precisely the goal of their movement.

However, even such an absolute religious and conscientious exemption to a homosexual “marriage” bill would not make the redefinition of marriage acceptable, or even tolerable, for one simple reason—the principal objection to homosexual “marriage” has nothing to do with religion. This is something that people on both sides of this debate need to be constantly reminded of.

We are not just fighting for “the right of religions to define marriage for themselves,” apart from the definition of “civil marriage.” This is because, at its heart, marriage is neither a civil institution nor a religious institution.

Instead, marriage is a natural institution—rooted in the order of nature itself.

The reason marriage is defined as the union of one man and one woman is because it takes precisely one man and one woman to create a new human life. Marriage is treated as a public institution because it is in the public interest (not just in the private interest of particular couples) for the human race to reproduce and continue into future generations.

It is also in the public interest for society to work at bonding each child to the mother and father whose sexual union produced them. This was evident even to the ancients, but modern social science has confirmed—beyond a shadow of a doubt—that children raised by their own married mother and father are happier, healthier, and more prosperous than children raised in any other living situation.

I wrote a pamphlet earlier this year listing “The Top Ten Harms of Same-Sex ‘Marriage.’” The threat to religious liberty was only one out of the ten. Even if that harm could be thoroughly forestalled—a grade of 10% is still a failing grade.

The core message of the opposition to homosexual “marriage” is not just, “Don’t make us perform same-sex weddings in our church.” Instead, it is: “Society needs children, and children need a mom and a dad.”

That’s true whether you are a Christian, a Buddhist, or an atheist.

This headline is entirely wrong. Same-sex “marriage” is absolutely, unequivocally not legal under federal law. Ever. At any time.

That is because of a federal law known as the Defense of Marriage Act (usually abbreviated DOMA). Public Law 104-199 was passed by overwhelming bipartisan majorities in both houses of Congress (342-67 in the House, 85-14 in the Senate), and signed into law by President Bill Clinton on September 21, 1996.

One part of the Defense of Marriage Act provided that states could not be obligated to recognize same-sex “marriages” contracted in other states.

The other key provision of DOMA (found in Section 3 of the bill), now under challenge in several courts, defines marriage for all purposes under federal law. It states:

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

This statute (now codified in Title I, Chapter 1, Section 7 of the United States Code) has never been repealed. It has never been struck down by the U.S. Supreme Court. It is the law. And it is unequivocal in forbidding federal recognition of same-sex “marriage.”

What Grant actually describes is not any ambiguity about the state of the law, but rather the duplicity of the current administration under President Obama and Attorney General Eric Holder. It is no secret that Obama would like to see DOMA repealed, but Holder has stated that in the meantime, “Section 3 will continue to be enforced by the Executive Branch.”

Holder’s actions, however, have belied those words. The latest example, described in Grant’s blog post, was Holder’s decision to overturn a decision by the Board of Immigration Appeals, which had ruled against an application for resident status by an Irish man who entered into a civil union with an American in New Jersey. Holder asked the Board to consider the case again, and determine “whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a ‘spouse’ under the Immigration and Nationality Act.” This is irrational, given that “the requirements of DOMA” are not “absent,” and it is utterly hypocritical when viewed in light of Holder’s promise to continue enforcement of DOMA.

In addition to the misleading headline, there is one other part of Grant’s blog post that requires some careful fact-checking. It is this paragraph:

One reason for the controversies is that the Department of Justice is opposed to the law. The opposition, however, only applies in certain jurisdictions. Contrary to headlines, the Department of Justice will defend DOMA in some courts. In February, Attorney General Eric Holder informed the Congress that the Department of Justice is opting out of defending DOMA in the U.S. Court of Appeals for the Second Circuit. In other words, the DOJ will no longer defend the act if a gay couple appeals a decision in New York, Connecticut, or Vermont, but it will defend the act in other states.

Really? I have not hesitated to accuse the Attorney General of hypocrisy with regard to DOMA, but not with quite such a level of hypocrisy that they would argue in one court that a law is unconstitutional while simultaneously arguing in another court that it is not. Yet that is what Grant appears to be stating is the current stance of the Justice Department.

I think Mr. Grant has mis-read (or perhaps not read all of) Mr. Holder’s letter to Congress on February 23. The very opening sentence of that letter reads,

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.

This amounted to a reversal of position for the Justice Department, which had defended DOMA, in the past, in other cases. For example, a federal district court judge in Massachusetts last year declared DOMA unconstitutional in a pair of cases, which are now on appeal to the First Circuit. The Justice Department filed briefs defending DOMA in those cases as recently as January 13 of this year.

To understand why the administration reversed its position, you must understand the different standards for deciding “equal protection” cases—“rational basis” vs. “heightened scrutiny.”

When a law creates a “classification” that treats some individuals or groups differently from others (in this case, treating opposite-sex couples differently from same-sex couples), it may sometimes be challenged as violating the constitution’s guarantee of the “equal protection” of the law. However, most laws are judged under a “rational basis” test, meaning that a legislative enactment will be upheld as long as there is any conceivable rational basis for the classification.

However, “heightened scrutiny” usually applies to classifications based on characteristics considered immutable and irrelevant to legitimate policy objectives, possessed by groups who are minorities or politically powerless and have been subject to a history of discrimination. The classic examples are race and sex. Use of a “heightened scrutiny” standard increases the chances of a court striking down a legislative enactment.

Earlier cases challenging the constitutionality of DOMA (such as the Massachusetts cases mentioned above) had been filed in federal court circuits in which there was controlling precedent saying that classifications based on “sexual orientation” are subject only to a “rational basis” test. The DOJ’s briefs had argued that DOMA was constitutional by this standard.

The new lawsuits challenging DOMA in New York and Connecticut, however, were filed in federal courts located in a circuit (the 2^nd) without any such precedent. Mr. Holder claims that this caused the DOJ to re-examine the question of the appropriate standard of inquiry, and that in turn led him to declare that “classifications based on sexual orientation warrant heightened scrutiny.” (It could be argued that defining marriage as the union of a man and a woman actually does not classify on the basis of “sexual orientation” at all, but that would require a separate blog post.)

Holder wrote, “Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen” (the two new Second Circuit cases).

What if the Second Circuit rejects the administration’s “heightened scrutiny” argument? Holder stated,

If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard.

Here, Holder appears to stand by the Department’s previous arguments under the more lenient standard—but he could hardly have done otherwise without appearing utterly foolish. But to say this means the Department “will defend the act” at all, as Grant states, seems a stretch. Note, for instance, the use of the passive voice—“a reasonable argument . . . may be proffered,” not that we will proffer such an argument.

Even before making the statement above, Holder declared, “This is the rare case where the proper course is to forgo the defense of this statute.”

Still, the focus in Holder’s letter on the newer Second Circuit cases might be seen as still leaving some ambiguity about the DOJ’s defense of DOMA in other courts—until you reach the penultimate paragraph of the letter. Here, he states,

I will instruct Department attorneys to advise courts in other pending DOMA litigation [emphasis added] of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

The reason for the primary focus on the Second Circuit cases in Holder’s February 23 letter to Congress was one of timing—he concludes by warning Speaker Boehner (as the likely new defender of DOMA), “A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011”—just sixteen days after the letter was sent. But “courts in other pending DOMA litigation” would be given the same statement.

The position of the administration on the defense of DOMA is now clear—the law “violates the equal protection component of the Fifth Amendment” and “the proper course is to forgo the defense of this statute.” As a result, “the Department will cease defense of Section 3.”

Tobin Grant’s claim that DOJ’s “opposition [to DOMA] only applies in certain jurisdictions” and that “the DOJ . . . will defend the act in other states” must be rated as incorrect.

Same-sex “marriage” bills (H 5012 and S 29) have been heard in both the House and Senate Judiciary Committees, but have not yet received a vote. Gordon Fox, openly homosexual and the speaker of the largely Democratic House, wants to delay the vote on the House version of the bill until he can be sure it has enough supporting votes to pass.  This hesitance to move forward with same-sex “marriage” is good news for supporters of marriage defined as one man and one woman.

Even if the votes are obtained to pass the House, Senate passage is far from certain especially since the Senate President, Theresa Paiva-Weed, opposes same-sex “marriage.”  Governor Lincoln Chafee, however, supports the bills, even urging their passage in his inaugural address, and has pledged his signature should one of them reach his desk.

These two same-sex “marriage” bills are not the only legislation regarding marriage and relationships in Rhode Island.  Also heard in the Senate Judiciary committee last Thursday were two constitutional amendments defining marriage (S 162 and S 115).  Senate Bill 162 defines the only valid marriage in RI as between a man and a woman, while Senate Bill 115 also defines marriage as between a man and a woman, but leaves open the possibility of establishing civil unions for same-sex “couples.”  Should either of these bills pass (or the House version, H 5260), it would be submitted to the citizens of Rhode Island for a vote.

Two bills regarding domestic unions between persons of the same sex have also received a hearing.  Senate Bill 376 would legalize “domestic unions” between any two adult spouses regardless of sex, and Senate Bill 377 would establish “reciprocal beneficiary agreements” for any two adults who do not fit within the legal definition of marriage, essentially granting the rights, benefits, and protections of marriage to same-sex couples.

Also in both House and Senate committees are bills that further expand the definition of “hate crimes,” making the motivation behind a crime a crime itself and including gender identity and sexual orientation as a protected class (H 5089 and S 121).  In addition, several bills implementing abortion restrictions or unborn child protections are currently in committee.

Educators

• Case of Don Mendel
• Case of Kenneth Howell
• Case of Mike Adams
• Case of June Sheldon

Attorneys

The State Bar of Arizona weighed revisions to the attorneys’ oath of office that would silence conservative viewpoints on moral issues. See:

Intellectual Conservative and Response to Proposed Change to Oath of Admission

Psychologist

• Case of Michael Campion

Counselor

• Case of Marcia Walden
• Case of Julea Ward
• Case of Jennifer Keeton

Physicians

• Benitez case

Yet now, DOMA is under the sharpest attack in its history—despite the fact that four federal courts have already upheld its constitutionality, and no federal or state appellate court has ever said that it violates the U.S. Constitution. In July 2010, however, a single federal District Court Judge in Boston, Joseph L. Tauro, ruled in a pair of cases that the federal definition of marriage in DOMA is unconstitutional. In November 2010, two more federal court challenges to DOMA were filed in New York and Connecticut. In total, there are no less than ten currently pending federal court cases which involve some form of challenge to DOMA. Here are some key questions and answers about the current status of this law:

Q: What did Attorney General Eric Holder announce on February 23 about the administration’s position regarding the federal Defense of Marriage Act (DOMA)

A: In a press release and in a letter to Congress, Mr. Holder said that he and President Obama have concluded that one of the provisions of the Defense of Marriage Act—the one which limits the federal government to recognizing only marriages between one man and one woman—is unconstitutional. This marked a sharp reversal, since the Department of Justice has submitted several briefs defending the constitutionality of DOMA in previous court cases.

This decision represents a shocking abdication of the Attorney General’s, and the President’s, constitutional responsibility to “take care that the laws be faithfully executed,” and sets a dangerous precedent for future executive refusals to defend existing law.

Q: What motivated this change of position?

A: Politics likely played a major role, as the Obama Administration has been under intense pressure from pro-homosexual activists to stop defending DOMA. There is also evidence which suggests collusion between the Justice Department and attorneys who are challenging DOMA and the definition of marriage in court. Attorneys in the case of Perry v. Schwarzenegger, who seek to overturn California’s marriage amendment (Proposition 8) and establish a federal constitutional right to same-sex “marriage,” filed a Motion to Vacate Stay with the Ninth Circuit, containing detailed citations from the Attorney General’s letter, just hours after the letter was released.

Family Research Council has filed a Freedom of Information Act (FOIA) request for any communications between the DOJ and litigants and attorneys in this case or in the cases challenging DOMA in other courts.

Q: Hasn’t President Obama opposed DOMA all along?

A: Yes, Mr. Obama favors the repeal of DOMA. However, it is possible to believe that a law represents bad public policy, while at the same time believing that it does not violate the Constitution. This had been the position of the Obama administration until February 23, 2011.

Q—How can the Administration justify such an about-face?

A: Earlier cases challenging the constitutionality of DOMA (such as the Massachusetts cases decided by Judge Tauro) had been filed in federal court circuits in which there was controlling precedent saying that classifications based on “sexual orientation” are subject only to a “rational basis” test—the most lenient level of scrutiny, under which legislative choices are accorded the greatest deference. The DOJ’s briefs had argued that DOMA was constitutional by this standard.

The new lawsuits challenging DOMA in New York and Connecticut, however, were filed in federal courts located in a circuit (the Second) without any such precedent. Mr. Holder claims that this caused the DOJ to re-examine the question of the appropriate standard of inquiry, and that in turn led him to declare that “classifications based on sexual orientation warrant heightened scrutiny.”

Q: What does “heightened scrutiny” mean?

A: When a law creates a “classification” that treats some individuals or groups differently from others (in this case, treating opposite-sex couples differently from same-sex couples), it may sometimes be challenged as violating the Constitution’s guarantee of the “equal protection” of the law. However, most laws are judged under a “rational basis” test, meaning that a legislative enactment will be upheld as long as there is any conceivable rational basis for the classification.

However, “heightened scrutiny” usually applies to classifications based on characteristics considered immutable and irrelevant to legitimate policy objectives, possessed by groups who are minorities or politically powerless and have been subject to a history of discrimination. The classic examples are race and sex. The Supreme Court has never said that this standard applies to “sexual orientation.” It would increase the chances of a court striking down laws which limit marriage or its benefits to the union of one man and one woman, such as DOMA.

Q: How did the Attorney General justify this call for “heightened scrutiny.”

A: Mr. Holder asserted that “a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable.” However, he cited only one source in support of this contention—one dated 1992. In a footnote, he further claims that “discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed.”

In fact the theory that there is a “gay gene” or that people are “born gay” has been largely discredited by science since the early 1990’s. Studies of identical twins, such as one in the American Journal of Sociology in 2002, “support the hypothesis that less gendered socialization in early childhood and preadolescence shapes subsequent” homosexuality. And evidence that homosexuals can change has come even from Dr. Robert Spitzer, the psychiatrist who led the effort to remove homosexuality from the official list of mental disorders. In a 2003 study, Spitzer found that “changes [in sexual orientation] . . . were not limited to sexual behavior and . . . self-identity. The changes encompassed sexual attraction . . . the core aspects of sexual orientation.”

Q: Who can defend DOMA if the Justice Department refuses to?

A: The courts have long recognized Congress’s vital interest in defending the constitutionality of its Acts in the rare circumstances that the Justice Department refuses to provide such a defense. This happens as recently as 1983 in INS v. Chadha. The Supreme Court made clear in the 1997 case Raines v. Byrd that individual members cannot assert these interests, as Congress can only act through resolutions passed by the majority. Either chamber may do so individually.

Q: What would it mean if DOMA were struck down by the courts?

A: The immediate result would be federal government recognition of same-sex “marriages” that are already legal in the state where they occurred. However, if the federal definition of marriage as the union of one man and one woman is found unconstitutional, it would be only a matter of time before the same definition at the state level would be struck down—including in the 29 states that have put that definition in their own constitutions. This is exactly the remedy sought by the plaintiffs in Perry (the Proposition 8 case), which is now before the Ninth Circuit.

Q: What should be done now?

A: Congress must continue to defend DOMA in court, since the Justice Department refuses to do so. Bills to legalize same-sex “marriage” must be defeated in state legislatures, and additional state marriage amendments must be adopted defining marriage as the union of a man and a woman. These make it hard for any court to find that there is an “emerging consensus” in favor of same-sex “marriage.” Finally, pro-family groups actively involved in the defense of marriage in court, such as the Alliance Defense Fund, and others involved in filing and coordinating amicus briefs, such as Family Research Council, need financial support for these efforts.

It is quite possible that the issue of same-sex “marriage” will reach the U. S. Supreme Court in 2012 or 2013. Pro-family citizens and office-holders must “speak now, or forever hold your peace.”