Carol Soelberg Blog
Marriage Law Foundation Defends Marriage in the Nation's Courts
Posted June 19, 2007
Dear Friend of the Family,
In the cultural war we are fighting, strengthening our own marriages and families is of greatest importance. There are, however, many battles that cannot be fought by individuals and families alone. The defense of marriage and family are among the most important tasks that we at United Families International are engaged in. We have had a fair share of successes, but marriage is under assault worldwide and our work is never finished. Let me introduce you to some real champions in the cause of defending marriage!
Our friends at the Marriage Law Foundation (MLF), a charitable, non-profit organization which provides legal resources to defend and protect marriage, play a huge role in our defense of marriage. Monte Stewart serves as president of the foundation, and William Duncan is the director. The board of trustees includes Lew Cramer, Robert Destro, Maggie Gallagher and Lynn Marie Kohm.
Last week, I interviewed William Duncan about marriage and the Marriage Law Foundation. Following is the transcript of our exchange, presented here to inform you on what is happening on the marriage front. I am identified as “C.S.,” and William Duncan is identified as “W.D.”
C.S.: What prompted the start-up of MLF, and what year was that?
W.D.: The Marriage Law Foundation started in November 2004, on the first anniversary of the court decision ( Goodridge vs. Department of Health, 2003 ) redefining marriage in Massachusetts. We felt the need to give full-time attention to the effort to provide legal resources that could be used to shore up the defense of marriage wherever possible.
C.S.: How did MLF come to be associated with UFI, and how would you describe our partnership?
W.D.: From the very beginning, United Families International gave important help to the foundation, helping us navigate the process of setting up and taking donations to support our work. Obviously, the defense of marriage is one of the issues UFI works on, so there is an obvious fit between our missions. Since both organizations have important insights about the unique importance of marriage to communicate to judges and other policymakers, MLF had made submissions to eight courts on behalf of UFI. Each case has involved a challenge to the marriage laws of a state.
C.S.: Will you please tell us about the organization's structure and functioning?
W.D.: There are only two attorneys in the office, so we just do whatever is needed in specific cases or in helping pro-family groups and individuals. I would also mention that we have excellent help from student interns, most from BYU's law school, but also from law schools like Harvard, South Texas College of Law, William & Mary , Washington University, Pepperdine and the University of Houston. Sometimes they receive school credit for their work, but mostly they help because of their commitment to the cause.
C.S.: What do you consider your top successes at MLF?
W.D.: I'm not sure we can claim credit for specific outcomes, particularly because there are so many other good groups and people who are doing so much to defend marriage that also deserve credit. We have been particularly heartened by the fact that no appeals court has completely redefined marriage since Massachusetts (although the New Jersey Supreme Court unfortunately ordered the state legislature to create a new status to parallel marriage for same-sex couples). I do think we have been able to make some important arguments in favor of marriage available to judges and government officials that we trust will make a difference in the continuing effort to shore up the law of marriage. I hope and believe that UFI and other organizations we have worked with will feel like we have always provided any assistance they needed in their pro-family work.
C.S.: Regarding the reputation of MLF, what are other people (organizations/media/legal community, etc.) saying about MLF?
W.D.: Monte Stewart, in particular, has been quoted extensively in media reports on the marriage question across the country. Some of the things we have written have been noted in court decisions in California, New Jersey, Arizona and Indiana. I'm not sure what other people are saying. I hope those on the other side of the marriage issue think we are fair and that pro-family groups see us as a resource.
C.S.: What do you think will happen with the current Rhode Island case?
W.D.: The question in Rhode Island is whether the state has to recognize a same-sex “marriage” contracted in Massachusetts for purposes of granting a divorce to Rhode Island residents. Under settled principles of the law, there is no reason that one state should have to recognize a marriage from another state when the law of the recognizing state is so fundamentally different from the state where the marriage took place. Massachusetts has created an entirely novel thing and used it to displace the inherited understanding of marriage. All other state laws explicitly or implicitly are based on that inherited understanding, so it doesn't make sense to export Massachusetts ' novel experiment into other states. I hope the Rhode Island courts will recognize this. These kinds of situations underscore the importance of states clarifying their marriage laws as the many states that have enacted state marriage amendments have done.
C.S.: Are the arguments and strategies used by the advocates of liberalized marriage laws changing/evolving, or are they basically repeating the same arguments? The opponents of last year's Protect Marriage Arizona ballot initiative focused not on same-sex “marriage,” but on domestic partner benefits; is this going to continue to be their strategy?
W.D.: Since the majority of Americans still value the unique contribution that marriage between a man and a woman makes in our society, it is not in the interest of those who want to redefine marriage to have citizens weigh in on the question. Thus, the strategy for redefinition is to choose states thought to have sympathetic judges who will judicially redefine marriage and file lawsuits in those states. Eventually, I suspect, the re-definers will seek to impose their new definition across the country. Where the marriage issue does get before voters, as with the state marriage amendments, the redefinition lobby tries to change the subject to benefits and avoid any talk of marriage. That strategy seems to have been successful in Arizona, so it will likely be repeated in other states.
C.S.: New York appears on the verge of legislating same-sex “marriage.” Do you think that eventually there will be a handful of liberal states legislating same-sex “marriage”? Will marriage ever be settled law throughout the nation, or will the legal battles continue indefinitely?
W.D.: I wouldn't assume that New York will legislatively redefine marriage. Most voters recognize what a radical step that is and will be extremely hesitant to support politicians who don't recognize that fact. There may very well be states where marriage is redefined by courts or by out-of-touch legislatures. The fact that some states may have lost (or will lose) the plot about family life is no reason that all states have to. That is a great promise of our federal system. Having said that, I think that those who support marriage need to act now to assure that the laws of their state and the nation always respect the understanding of marriage as a child-centered institution that brings men and women together rather than just an adult lifestyle choice.
C.S.: How is the 2008 election shaping up for state marriage initiatives?
W.D.: We had hoped that the Massachusetts legislature would give the people of that state an opportunity to weigh in on the state supreme court's redefinition of marriage. Sadly, that will not happen in 2008. I think we will see more states propose state marriage amendments to be approved by voters in 2008, but it is early.
C.S.: What can UFI supporters do to support existing marriage laws?
W.D.: State marriage amendments are one of the most important tools to protect the legal definition of marriage. In states where there is no amendment, pro-family citizens can encourage adoption of an amendment or other appropriate legal action. Obviously, letting representatives know how important marriage and family issues are to them is crucial. All of us can also act to strengthen our own families to ensure that a culture that seems to be in danger of losing its appreciation for marriage will have examples and more children will be able to experience the benefits of being raised by a married mother and father.
C.S.: In 2003, a lot of people on our side were talking about the “Full Faith and Credit Clause.” That phrase doesn't seem to come up as much lately; why is that?
W.D.: The Full Faith and Credit Clause to the U.S. Constitution was discussed a lot in the early 1990s when it appeared the Hawaii Supreme Court was inclined to redefine marriage. Activists hoped this would happen, followed by same-sex couples from all over the country flying to Hawaii to marry -- only to return home and seek recognition in their home state's courts. The argument made by advocates of redefinition was that the Full Faith and Credit Clause would force these other states to recognize Hawaii 's same-sex “marriages.” The people of Hawaii prevented all this through a constitutional amendment. When Massachusetts finally redefined marriage, the state had a residency requirement for same-sex “marriages” (enforced by then-Governor Romney) that prevented a massive exportation of Massachusetts same-sex “marriage” to other states. So the Full Faith and Credit argument has not been prominent. There is talk that the Massachusetts legislature may repeal the residency requirement,,so the issue may re-emerge soon. This, by the way, is one of the arguments made in the Rhode Island case.
C.S.: Californians are going to begin collecting signatures this July for a 2008 state marriage amendment. There is serious concern that the California Supreme Court will rule for same-sex “marriage” next year. What is your take on marriage in California ?
W.D.: I am cautiously optimistic about California. The court of appeals there ruled 2-1 in favor of marriage. It is clear that the California Constitution does not create a mandate that marriage be redefined so I am hopeful that a majority of judges on the California Supreme Court will recognize that. The legislature of California has recently done some things that demonstrate a very radical mindset, so we have to be concerned. Obviously, we can never be sure what a court will do and it is very wise to pursue the constitutional amendment process there to ensure that there is no meddling with the state's definition of marriage, or if there is, that it is quickly corrected.
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