3:09-cv-02292 #302

Case3:09-cv-02292-VRW Document302 Filed12/11/09 Page1 of 26
1 COOPER AND KIRK, PLLC

Charles J. Cooper (DC Bar No. 248070)*
2 ccooper@cooperkirk.com
David H. Thompson (DC Bar No. 450503)*
3 dthompson@cooperkirk.com
Howard C. Nielson, Jr. (DC Bar No. 473018)*
4 hnielson@cooperkirk.com
Nicole J. Moss (DC Bar No. 472424)*
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Peter A. Patterson (OH Bar No. 0080840)*
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1523 New Hampshire Ave. N.W., Washington, D.C. 20036
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8 LAW OFFICES OF ANDREW P. PUGNO

Andrew P. Pugno (CA Bar No. 206587)
9 andrew@pugnolaw.com
101 Parkshore Drive, Suite 100, Folsom, California 95630
11 ALLIANCE DEFENSE FUND

Brian W. Raum (NY Bar No. 2856102)*
12 braum@telladf.org
James A. Campbell (OH Bar No. 0081501)*
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15100 North 90th Street, Scottsdale, Arizona 85260
15 ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,

GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM,
16 MARK A. JANSSON, and PROTECTMARRIAGE.COM – YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL
17
* Admitted pro hac vice
18
UNITED STATES DISTRICT COURT
19 NORTHERN DISTRICT OF CALIFORNIA
20 KRISTIN M. PERRY, SANDRA B. STIER, PAUL

T. KATAMI, and JEFFREY J. ZARRILLO, CASE NO. 09-CV-2292 VRW
21
DEFENDANT-INTERVENORS’
Plaintiffs, MEMORANDUM IN OPPOSITON TO
22
PLAINTIFFS’ AND PLAINTIFF-
23 CITY AND COUNTY OF SAN FRANCISCO, INTERVENOR’S MOTION IN
LIMINE TO EXCLUDE THE EXPERT
24 Plaintiff-Intervenor, REPORTS, OPINIONS, AND
TESTIMONY OF KATHERINE
25 v. YOUNG, LOREN MARKS, AND
DAVID BLANKENHORN
26
ARNOLD SCHWARZENEGGER, in his official Pretrial Conference
27 capacity as Governor of California; EDMUND G.
BROWN, JR., in his official capacity as Attorney Date: December 16, 2009
28 General of California; MARK B. HORTON, in his Time: 10:00 a.m.
DEFENDANT-INTERVENORS’ OPPOSITION TO MOTION IN LIMINE RE YOUNG, MARKS, AND BLANKENHORN

CASE NO. 09-CV-2292 VRW
1 official capacity as Director of the California Judge: Chief Judge Vaughn R. Walker
Department of Public Health and State Registrar of Location: Courtroom 6, 17th Floor
2 Vital Statistics; LINETTE SCOTT, in her official
Trial Date: January 11, 2010
capacity as Deputy Director of Health Information
3
& Strategic Planning for the California Department
4 of Public Health; PATRICK O’CONNELL, in his
official capacity as Clerk-Recorder for the County
5 of Alameda; and DEAN C. LOGAN, in his official
capacity as Registrar-Recorder/County Clerk for
6 the County of Los Angeles,
7
Defendants,
8
and
9
PROPOSITION 8 OFFICIAL PROPONENTS
10 DENNIS HOLLINGSWORTH, GAIL J.
KNIGHT, MARTIN F. GUTIERREZ, HAK-
11 SHING WILLIAM TAM, and MARK A.
JANSSON; and PROTECTMARRIAGE.COM –
12 YES ON 8, A PROJECT OF CALIFORNIA
RENEWAL,
13
Defendant-Intervenors.
14
15
Additional Counsel for Defendant-Intervenors
16
17 ALLIANCE DEFENSE FUND

Timothy Chandler (CA Bar No. 234325)
18 tchandler@telladf.org
101 Parkshore Drive, Suite 100, Folsom, California 95630
20 Jordan W. Lorence (DC Bar No. 385022)*

jlorence@telladf.org
21 Austin R. Nimocks (TX Bar No. 24002695)*
animocks@telladf.org
22 801 G Street NW, Suite 509, Washington, D.C. 20001
Telephone: (202) 393-8690, Facsimile: (202) 347-3622
23
* Admitted pro hac vice
24
25
26
27
28

TABLE OF CONTENTS
Page
ARGUMENT ....................................................................................................................................... 1
I. Katherine Young. ..................................................................................................................... 4
a. Professor Young is Qualified to Offer Expert Opinions in this Case .......................... 4
b. Professor Young’s Opinions Are Relevant.................................................................. 6
c. Professor Young’s Opinions are Reliable.................................................................... 8
II. Loren Marks ....................................................................................................................... 10
a. Professor Marks is Qualified to Offer Expert Opinions in this Case ........................ 10
b. Professor Marks’ Opinions Are Relevant .................................................................. 11
c. Professor Marks’ Opinions Are Reliable ................................................................... 12
III. David Blankenhorn . ............................................................................................................ 14
a. Mr. Blankenhorn is Qualified to Offer an Expert Opinion in this Case .................... 14
b. Mr. Blankenhorn’s Opinions Are Relevant ............................................................... 18
c. Mr. Blankenhorn’s Opinions Are Reliable ................................................................ 18
CONCLUSION.................................................................................................................................. 21
i
DEFENDANT-INTERVENORS’ MEMORANUM IN OPPOSITION TO PLAINTIFFS’ AND PLAINTIFF-INTERVENOR’S
MOTION IN LIMINE CASE NO. 09-CV-2292 VRW
TABLE OF AUTHORITIES
Cases Page
Dang Vang v. Toyed, 944 F.2d 476 (9th Cir. 1991) ............................................................................ 7
Daubert v. Merrell Dow Pharm., 43 F.3d 1317 (9th Cir. 1995) ............................................. 9, 11, 20
Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) ....................................................................... 2
Deal v. Hamilton County Bd. of Educ., 392 F.3d 840 (6th Cir. 2004) ............................................... 3
Douglas v. University Hosp., 150 F.R.D. 165 (E.D. Mo. 1993) ....................................................... 14
General Elec. Co. v. Joiner, 522 U.S. 136 (1997) ....................................................................... 12, 19
Gibbs v. Gibbs, 210 F.3d 491 (5th Cir. 2000) ..................................................................................... 3
Hangerter v. Providence Life & Accident Ins. Co., 373 F.3d 998 (9th Cir. 2004) .............................. 1
Jinro Am., Inc. v. Secure Invs., Inc., 266 F.3d 993 (9th Cir.), amended by 272 F.3d 1289
(9th Cir. 2001) ............................................................................................................................... 3
Johnson v. Robison, 415 U.S. 361 (1974) ......................................................................................... 12
Kumho Tire Co. v. Charmicahel, 526 U.S. 137 (1999) .................................................. 2, 8, 9, 10, 19
Marshall v. Sawyer, 365 F.2d 105 (9th Cir. 1966) ............................................................................ 18
Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1142 (9th Cir. 1997) ............................. 13
Stillwell v. Smith & Nephew, Inc., 482 F.3d 1187 (9th Cir. 2007) ........................................ 12, 13, 20
Thomas v. Newton Int’l Enter., 42 F.3d 1266 (9th Cir. 1994) ............................................................. 1
United States v. $124,579 U.S. Currency, 873 F.2d 1240 (9th Cir. 1989) ........................................ 18
United States v. 14.38 Acres of Land Situated in Leflore County, Miss., 80 F.3d 1074
(5th Cir. 1996) ............................................................................................................................... 3
United States v. Bilson, 648 F.2d 1238 (9th Cir. 1981) ................................................................. 2, 11
United States v. Brown, 415 F.3d 1257 (11th Cir. 2005) .................................................................... 3
United States v. Chischilly, 30 F.3d 1144 (9th Cir. 1994) ................................................................... 1
United States v. Finley, 301 F.3d 1000 (9th Cir. 2002) ................................................................. 2, 11
United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000) ..................................................................... 3
United States v. Moore, 604 F.2d 1228 (9th Cir. 1979) ...................................................................... 2
ii
United States v. Rahm, 993 F.2d 1405 (9th Cir. 1993) ........................................................................ 8
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ................................................................................. 4
Rules Page
FED. R. EVID. 201................................................................................................................................. 3
FED. R. EVID. 401................................................................................................................................. 2
FED. R. EVID. 702........................................................................................................................ passim
Other Page
CHARLES ALAN WRIGHT & VICTOR JAMES GOLD, 29 FEDERAL PRACTICE &
PROCEDURE EVID. § 6265. ........................................................................................................... 1
iii
1 Professor Katherine Young, Professor Loren Marks, and Mr. David Blankenhorn are
2 prominent and distinguished individuals who by training and experience are well equipped to offer
3 reliable expert opinions on matters highly relevant to this case. Plaintiffs’ arguments for excluding
4 their testimony not only lack merit, they would almost certainly require the exclusion of Plaintiffs’
5 experts as well. Plaintiffs’ motion in limine should be denied.
6 ARGUMENT
7 Federal Rule of Evidence 702 governs the admissibility of expert testimony. It provides
8 that
9 If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
10 expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts
11 or data, (2) the testimony is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the facts of the case.
12
13 The rule logically is broken down into three basic components: (1) qualifications; (2)
14 relevance; and (3) reliability.1
15 Qualifications. Rule 702 “contemplates a broad conception of expert qualifications.”
16 Thomas v. Newton Int’l Enterprises, 42 F.3d 1266, 1269 (9th Cir. 1994). As it makes clear, a
17 witness may be qualified as an expert by knowledge, skill, experience, training, or education. Any
18 one of these bases, in other words, may be the source for a witness’s expertise. See Charles Alan
19 Wright & Victor James Gold, 29 FED. PRAC. & P. EVID. § 6265. Furthermore, the degree of the
20 witness’s “knowledge, skill, experience, training, or education” may be quite modest and need only
21 be sufficient to “assist the trier of fact” to some degree. Id. (quotation marks omitted). As the
22 Ninth Circuit has explained, a proffered expert need possess only the “minimal foundation of
23 knowledge, skill, and experience required” by Rule 702’s “broad conception of expert
24 qualifications.” Hangarter v. Providence Life & Accident Ins. Co., 373 F.3d 998, 1015, 1016 (9th
25
1
26 Of course, expert testimony, like other forms of testimony, is subject to Federal Rule of Evidence
403. See United States v. Chischilly, 30 F.3d 1144, 1156 (9th Cir. 1994). Plaintiffs’ claims that
27 the expert testimony of Blankenhorn, Young, and Marks runs afoul of Rule 403, however, rests
entirely on their contentions regarding qualifications, relevance, and reliability. See Doc # 285 at
28 19, 24, & 28-29. These claims thus require no independent attention.
1
1 Cir. 2004) (quotation marks omitted, emphases in original). Indeed, in United States v. Moore, 604
2 F.2d 1228, 1235 (9th Cir. 1979), the Ninth Circuit held that the district court properly permitted an
3 expert to testify on a subject it would have taken the jury “a day of training” to master. Once this
4 requisite “minimal foundation” of expertise is established, Newton Int’l, 42 F.3d at 1269-70, issues
5 related to the extent of a witness’s expertise go to the weight to be accorded the testimony, not its
6 admissibility, see United States v. Bilson, 648 F.2d 1238, 1239 (9th Cir. 1981) (holding that the
7 “absence of a specialty degree in psychology did not disqualify [a] psychiatrist” from basing expert
8 testimony on the results of psychological tests” but instead went “to the weight of his testimony”).
9 Relevance. The requirement that expert testimony “assist the trier of fact to understand the
10 evidence or to determine a fact in issue,” FED. R. EVID. 702, is “primarily” one of relevance,
11 Daubert v. Merrell Dow Pharm., 509 U.S. 579, 591 (1993). This flows from the common-sense
12 observation that “[e]xpert testimony which does not relate to any issue in the case is not relevant
13 and, ergo, non-helpful.” Id. (quotation marks omitted). Evidence is relevant, of course, if it has
14 “any tendency to make the existence of any fact that is of consequence to the determination of the
15 action more probable or less probable than it would be without the evidence.” FED. R. EVID. 401.
16 Relevant expert testimony must also be proper for treatment by an expert; it in other words must
17 “exceed the common knowledge of the average layperson.” United States v. Finley, 301 F.3d 1000,
18 1013 (9th Cir. 2002)
19 Reliability. The “gatekeeping” function imposed on district courts by Rule 702 extends to
20 all types of expert testimony, and requires district courts to assess not only the relevance of
21 proffered expert testimony but also its reliability. See Kumho Tire Co. v. Carmichael, 526 U.S.
22 137, 148 (1999). Rule 702 guides this reliability inquiry, stating that an expert may testify if “(1)
23 the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable
24 principles and methods, and (3) the witness has applied the principles and methods reliably to the
25 facts of the case.” District courts have “considerable leeway in deciding in a particular case how to
26 go about determining whether particular expert testimony is reliable.” Kumho, 526 U.S. at 152.
27 Factors such as whether an expert’s approach has been subject to peer review, can be tested, or has
28 a known error rate may be relevant—or may not be. See id. at 149-50. The inquiry is a “flexible
2
1 one,” and it depends on the nature of the case at hand. Id. at 150 (quotation marks omitted). In all
2 events, “the rejection of expert testimony is the exception rather than the rule”; “‘the trial court’s
3 role as gatekeeper is not intended to serve as a replacement for the adversary system.’” Notes of
4 Advisory Committee on 2000 Amendments, FED .R. EVID. 702 (quoting United States v. 14.38
5 Acres of Land Situated in Leflore County, Mississippi, 80 F.3d 1074, 1078 (5th Cir. 1996)).
6 District courts are always granted “broad discretion” when applying these principles under
7 Rule 702. United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000). But for at least two
8 reasons, the Court’s discretion to consider expert testimony should be particularly broad in this
9 case.
10 First, the Court, not a jury, is the finder of fact in this case. “The ‘gatekeeper’ doctrine,”
11 however, “was designed to protect juries and is largely irrelevant in the context of a bench trial.”
12 Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 852 (6th Cir. 2004); see also Gibbs v. Gibbs,
13 210 F.3d 491, 500 (5th Cir. 2000) (“Most of the safeguards provided for in Daubert are not as
14 essential in a case such as this where a district judge sits as the trier of fact in place of a jury.”);
15 United States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005) (“There is less need for the gatekeeper
16 to keep the gate when the gatekeeper is keeping the gate only for himself.”). The concern that a jury
17 will grant “special weight” to the testimony of a witness “cloaked with the mantle of an expert” is
18 simply absent in this case. Jinro Am., Inc. v. Secure Invs., Inc., 266 F.3d 993, 1004 (9th Cir. 2001),
19 amended by 272 F.3d 1289 (9th Cir. 2001).
20 Second, an overly restrictive view of permissible expert testimony would be especially
21 perverse here given the legislative nature of the facts at issue. The essential and universal functions,
22 features, and purposes of marriage, the likely impact of extending marriage to same-sex couples, and
23 the ideal family context for raising children are paradigmatic examples of legislative facts; i.e. facts
24 that go beyond the parties to the dispute “which have relevance to legal reasoning and the lawmaking
25 process.” Advisory Committee Note, FED. R. EVID. 201. As we have explained, the Court is
26 unlimited in the material it can consider with respect to legislative facts—it “may consult the sources
27 of pertinent data to which [the parties] refer, or [it] may refuse to do so. [It] may make an
28 independent search for persuasive data or rest content with what [it] has or what the parties present.”
3
1 Id.; see also Doc # 139 at 9-16; Doc # 172-1 at 30-31. The Court is thus free, for example, to study
2 The Future of Marriage to assist it in determining the likely consequences of same-sex marriage.
3 There is no logical reason why it should not also be free to consider the live expert testimony of
4 David Blankenhorn, the book’s author, on these issues. Likewise, the Court is free to delve into the
5 social science studies on parenting discussed in Professor Marks’ expert report; surely the Court’s
6 ability to synthesize and interpret those studies would be assisted by Professor Marks’ testimony.2
7 I. Katherine Young
8 a. Professor Young is Qualified to Offer Expert Opinions in this Case
9 A brief, non-exhaustive overview of Professor Young’s qualifications demonstrates that she
10 is eminently qualified to provide her opinion, “as an expert in comparative religion, on what
11 universally constitutes marriage and why.” Declaration of Katherine Young, PhD. (“Young
12 Decl.”), Doc # 286-4 at 2.
13 Professor Young has a master’s degree in comparative religion from the University of
14 Chicago, and she earned her PhD. in the history of religions, comparative religion from McGill
15 University. See Young Decl., Doc # 286-4 at 24. She is currently a full professor in McGill
16 University’s Faculty of Religious Studies, a position she has held since 1997. Id. She is also a
17 James McGill Professor, an honor the university bestows upon its most productive and
18 internationally renowned researchers. Id. at 4 n.3. She has taught graduate level courses including
19 Theories in Religious Ethics; Bioethics and World Religions; Gender and World Religions; and
20 Methodologies in the Study of Gender and World Religions; her undergraduate courses include
21 Theories of Religion; World Religions; Comparative Religion; Introduction to World Religion; and
22 Religion, Pluralism, and Human Rights. Id. at 25.
23 Professor Young’s scholarly work within the field of comparative religion is wide-ranging.
24
2
25 The Iowa Supreme Court recognized and applied these principles when determining whether that
State’s constitution required extending marriage to same-sex couples. Applying state law, the
26 Court held that the trial court erred in its refusal to consider “all of the material tendered by the
parties” in the case—including the expert report Professor Young submitted in the matter. Varnum
27 v. Brien, 763 N.W.2d 862, 881 (Iowa 2009). The Iowa courts’ treatment of Professor Young’s
expertise thus goes to show not that her testimony should be excluded, see Doc # 285 at 17, but
28 rather that it is proper for the Court to consider it.
4
1 Her scholarship frequently draws on cultural anthropology, and she has not only studied the topic,
2 but has also taken several research trips to India to perform her own field work. Id. at 4, 27. Her
3 scholarly work has also extended to topics as diverse as women and religion, men and religion,
4 comparative ethics, reproduction and marriage, and religion, pluralism, and human rights, among
5 others. See id. at 4-8.
6 Professor Young’s expertise is further demonstrated by her prolific body of written work.
7 Her publications on issues related to marriage and the family include: “Redefining Marriage or
8 Deconstructing Society; a Canadian Case Study,” an article written with Dr. Paul Nathanson
9 published in the Journal of Family Studies; “The Future of an Experiment,” a chapter written with
10 Dr. Nathanson in the book Divorcing Marriage: Unveiling the Danger’s in Canada’s New Social
11 Experiment; a series of books with Dr. Nathanson on the subject of misandry (or contempt for
12 men); “The Institution of Marriage: a Mediation of Nature and Culture in Cross-Cultural
13 Perspective,” a chapter under review for inclusion in a book titled The Conjugal Bond:
14 Interdisciplinary Perspectives on the Institution of Marriage; “Hindu Marriage,” an article written
15 with Arvind Sharma published in Ecumenism; “Gender Equality and Sex Differences: The Effects
16 on Parents and Children,” a paper written with Dr. Nathanson for a conference at the University of
17 Virginia; “Gay Adults v. Children: Rights in Conflict,” a lecture presented to the Lord Reading
18 Law Society; and “Homosexuality and Religion: A Comparative Perspective,” a paper presented at
19 the University of Toronto. These publications are only the tip of the iceberg; Professor Young has
20 brought her expertise to bear on ethics and law, gender, Hinduism, and other topics. See id. at 31-
21 51. Her writings also include over 30 encyclopedia entries. Id.
22 Professor Young’s expertise has not gone unnoticed by the government of Canada. In 2000,
23 the Canadian Department of Justice contracted with her to research marriage from the perspective
24 of comparative religion. Id. at 27. She also gave an invited presentation to the Canadian House of
25 Commons Standing Committee on Justice and Human Rights on “Questioning Some of the Claims
26 for Gay Marriage.” Id. In 2005, she presented her views to the House of Commons’ Legislative
27 Committee on Bill C-38 (the act that extended marriage to same-sex couples in Canada) and she
28 addressed the Standing Senate Committee on Legal and Constitutional Affairs of the Canadian
5
1 Parliament. Id.
2 Plaintiffs do not meaningfully engage the extensive indicia of Professor Young’s expertise.
3 For example, Plaintiffs claim that Professor Young is not an expert in anthropology.3 To be sure,
4 she is not an anthropologist, but as she has explained her field of comparative religion includes the
5 study of anthropology, see Young Decl., Doc # 286-4 at 5; Young Dep., Doc # 28601 at 9:14-16,
6 November 13, 2009, she has read extensively in the area, id. at 8:3-20, she considers anthropology
7 to be part of her expertise, id., her writings include anthropological elements, id. at 8:24-9:2, and
8 she is working on books that will include the results of her own field research in India, id. On these
9 grounds, she is surely qualified to provide expert testimony in comparative religion that draws in
10 part on her knowledge, skill, experience, training, and education in anthropology.4
11 It is also not the case that Professor Young’s sole expertise is in Hinduism. See Doc # 285
12 at 15. Hinduism, to be sure, is the religion in which she has particular expertise, but she also has
13 expertise generally in comparative religion. Doc # 286-4 at 4. And in the field of comparative
14 religion, “to know one religion, alone, is to know none.” Id. “True understanding,” Professor
15 Young explains, “requires knowing what makes a particular religion similar or different than others.
16 Id. Professor Young’s experience, including teaching introductory courses in world religion, has
17 advanced her knowledge of religions other than Hinduism. Id.
18 b. Professor Young’s Opinions Are Relevant
19 The subject of Professor Young’s testimony certainly “exceed[s] the common knowledge of
20 the average layperson,” Finley, 301 F.3d at 1013, an issue Plaintiffs do not contest. What they do
21 claim is that is that her testimony is somehow not relevant because it is not “specific to the factual
22 situation presented in this case”; i.e. it does not address directly “the passage of Prop. 8 in
23 3
Plaintiffs also contend that Professor Young is not an expert in fields such as sociology,
24 psychology, biology, medicine, child development, statistics, survey construction and methodology,
or political science. See Doc # 285 at 15. True or not, any lack of expertise in these areas has no
25 bearing on Professor Young’s qualifications to discuss what universally constitutes marriage and
why by applying the methods of comparative religion.
4
26 Plaintiffs’ claim that “she has not submitted any articles for peer review in any relevant field” is
similarly faulty. Doc # 285 at 15. She has an extensive publication history, see Doc # 286-4 at 31-
27 51, and Plaintiffs’ claim is supported with a citation to Professor Young’s deposition testimony that
she has not published a peer-reviewed article “in an anthropological journal.” See id. (citing Young
28 Dep. 11:19-13:5).
6
1 California and the resulting deprivation of the constitutional rights of gay and lesbian individuals in
2 California.” Doc # 285 at 16; but c.f. Dang Vang v. Toyed, 944 F.2d 476, 481 (9th Cir. 1991)
3 (affirming district court’s permitting expert to testify “generally as to the Hmong culture, but
4 [precluding testimony] regarding the specifics of [the] case”) (emphasis added). The matters
5 relevant to the Court’s decision in this case, however, extend well beyond the confines of modern-
6 day California. See, e.g., Doc # 76 at 7 (identifying “the history of marriage and whether and why
7 its confines may have evolved over time” as an issue for factual development distinct from “the
8 longstanding definition of marriage in California”). A key question in this case is what marriage is,
9 at an essential and definitional level. See, e.g., Doc # 213 at 13. Professor Young’s expert
10 testimony will assist the Court in answering that question; as her expert report demonstrates, across
11 time and across cultures, marriage has always served certain functions and consisted of certain
12 features. Doc # 286-4 at 2-3. Many of the universal functions and features she identifies center on
13 facilitating and mediating the procreative nature of relationships between men and women. Id.
14 That marriage has universally served these ends throughout time and across cultures sharply
15 undercuts Plaintiffs’ claims that same-sex marriage is a fundamental right, that same-sex and
16 opposite-sex couples are similarly situated for purposes of access to civil marriage, that the
17 traditional institution of marriage does not advance vital (or even legitimate) government interests,
18 and that support for the traditional definition of marriage can only be ascribed to animus or bigotry
19 against gays and lesbians. Indeed, a key premise of her testimony is that an institution such as
20 marriage that is present across societies and cultures cannot be understood adequately with
21 reference to its characteristics in one particular culture. Id. at 3.5
22 In all events, Plaintiffs’ complaint that Professor Young has declined to opine on certain
23 matters relevant to the Court’s decision in this case is built on an incorrect legal premise. As the
24 5
Plaintiffs’ claim that Professor Young has “acknowledged that the separation of church and state
25 renders any comparison between legal regimes based on religion … to western civil law regimes
inapposite to the question of whether Prop. 8 is unconstitutional under Equal Protection Clause” is
26 unsupported. Doc # 285 at 15. In the deposition testimony they cite, Professor Young merely
acknowledges that the law in the United States today is not based on religion. See Young Dep.,
27 Doc # 286-1 at 232:21-233:6. This in no way undercuts her thesis that something basic about
human nature is revealed by a phenomenon that has been universally present across time and
28 cultures.
7
1 Ninth Circuit has made clear, “not every expert need express, nor even hold, an opinion with regard
2 to the issues involved in a trial.” United States v. Rahm, 993 F.2d 1405, 1411 (9th Cir. 1993).
3 Instead, “the key concern is whether expert testimony will assist the trier of fact in drawing its own
4 conclusion as to a ‘fact in issue.’” Id. Professor Young’s testimony regarding what universally
5 constitutes marriage and why will assist the Court’s determination of myriad issues presented by
6 this case.
7 c. Professor Young’s Opinions Are Reliable
8 Professor Young’s expert testimony is sufficiently reliable. Kumho, 526 U.S. at 152. First,
9 her “testimony is based on sufficient facts or data.” FED. R. EVID. 702(1). As the rule writers made
10 clear, this requirement “calls for a quantitative rather than a qualitative analysis.” Notes of
11 Advisory Committee on 2000 Amendments, FED. R. EVID. 702. Professor Young’s testimony is
12 based on her “comparative study of the marriage norms of those world religions that have survived
13 from earlier civilizations,” namely Judaism, Confucianism, Hinduism, Islam, and Christianity, and
14 the anthropological work of Suzanne Frayser, whose definition of marriage “is based on a sub
15 sample (every third example) from the full Standard Cross-Cultural Sample of 186 societies
16 designed by Murdock and White.”6 Doc # 286-4 at 15. She excludes Buddhism, not because its
17 marriage norms run counter to her conclusions but rather because due to its unique features it has
18 not developed a robust tradition on marriage and the family. See id. at 15 n.21. Plaintiffs chide her
19 for not examining the positions of “professional associations” in various fields on “whether gay and
20 lesbian individuals should be permitted to marry one another,” Doc # 285 at 18, but it is unclear
21 how these positions could inform an inquiry grounded in comparative religion into what universally
22
6
Plaintiffs’ claim that Professor Young’s comparative study of world religions consists of “nothing
23
more than her review of the work of one other academic who did not consider the possibility of
24 marriage of same-sex couples” is at best misleading. Doc # 285 at 17. As an initial matter, it is
unclear how a scholar in this field would “consider” the possibility of same-sex marriage; a given
25 society’s marital norms presumably are what they are. Furthermore, the deposition testimony cited
by Plaintiffs makes clear that she has not only reviewed another scholar’s work but also brought her
26 own knowledge of world religions to bear on the matter. See Young Dep., Doc # 286-1 at 140:11-
27 17; see also Katherine K. Young and Paul Nathanson, “Redefining Marriage or Deconstructing
Society: a Canadian Case Study.” Journal of Family Studies (Australia) Vol. 13 Issue 2 at 141
28 (November 2007) (attached as Exhibit A).
8
1 constitutes marriage and why. The same goes for the opinions of such organizations with respect to
2 whether same-sex parents are as effective at raising children as opposite-sex parents. Id. at 18-19.
3 Second, Professor Young’s testimony is “the product of reliable principles and methods.”
4 FED. R. EVID. 702(2). Those principles and methods are simply the principles and methods of her
5 field, comparative religion: “Scholars in [comparative religion] examine traditions to find general
6 patterns (apart from anything else). The patterns found are used to make inductive generalizations.
7 These generalizations, in turn, invite explanations.” Doc # 286-4 at 10. This is precisely what
8 Professor Young has done in preparing her testimony. She has examined the traditions of world
9 religions, identified general patterns that have enabled her to make generalizations about what
10 universally constitutes marriage, and reasoned from those generalizations to arrive at explanations
11 for why that is the case—and to identify some likely consequences of departing from these
12 universals. Surely Plaintiffs do not claim comparative religion is a discipline, like “astrology or
13 necromancy,” that “itself lacks reliability.” Kumho, 526 U.S. at 151.
14 Young’s particular methodology also bears additional indicia of reliability that courts have
15 sometimes considered relevant. For one, it has grown “naturally and directly out of research [she
16 has] conducted independent of the litigation.” Daubert v. Merrell Dow Pharm, 43 F.3d 1211, 1317
17 (9th Cir. 1995). Indeed, Professor Young’s research on marriage from the perspective of
18 comparative religion spans nearly a decade since Justice Canada contracted with her to perform
19 research on the subject in 2000. See Doc # 286-4 at 8 n.9. Her publications on the subject include
20 “Hindu Marriage,” written with Arvind Sharma, an article published in the journal Ecumenism.
21 Ecumenism 163 (September 2006) 4-11 (attached as Exhibit B). That article “analyzed Hindu
22 marriage from a comparative perspective,” reasoning that it “can be viewed as a constellation of …
23 universal, nearly universal, and variable features.” Id. at 4-5. They also include “Redefining
24 Marriage or Deconstructing Society: A Canadian Case Study,” an article written by Professor
25 Young with Dr. Nathanson that appeared in the Australian Journal of Family Studies. Journal of
26 Family Studies Australia, Vol. 13 Issue 2 (Nov. 2007) (attached as Exhibit A). That article sets
27 forth the results of Professor Young’s cross-cultural study of marriage in the context of analyzing
28 Canada’s adoption of same-sex marriage. See id. at 140-43. Professor Young, by all indications,
9
1 will “employ[] in the courtroom the same level of intellectual rigor that characterizes” her study of
2 marriage from the perspective of comparative religion generally. Kumho, 526 U.S. at 152.
3 For another, Young’s conclusions “can be … tested” empirically. Daubert, 509 U.S. at 593.
4 As Young explains, “[c]omparative religion is an empirical and social scientific approach to
5 religion.” Doc # 286-4 at 4. “Empirical data” in comparative religion “comes from the
6 anthropological study of both small-scale and large-scale societies.” Id. at 10. Young’s
7 conclusions are thus subject to test by others employing this data.
8 Third, Professor Young “has applied the principles and methods reliably to the facts of the
9 case.” FED. R. EVID. 702(3). As we have explained, she has applied the principles and methods of
10 comparative religion to the marriage norms in world religions to derive what universally constitutes
11 marriage and why. Plaintiffs’ complaint that Young has not considered the views of particular
12 denominations within American Christianity misses the mark—pursuant to her scholarly
13 methodology she has undertaken a historical, cross-cultural analysis of marital norms rather than
14 engaging in a more particularistic analysis. See Doc # 286-4 at 3 & n.2.
15 II. Loren Marks
16 a. Professor Marks is Qualified to Offer Expert Opinions in this Case
17 Professor Marks is well-qualified to provide an expert opinion with respect to the question,
18 “Based on available social science that meets established standards, is the biological, marriage-
19 based family the ideal structure for child outcomes?” Doc # 286-5 at 2.
20 Professor Marks has a master’s degree in family sciences and human development and a
21 PhD. in family studies. Id. at 16. The “primary” aim of the field of family studies or family
22 sciences, in Professor Marks’ words, is to “figure out why some families struggle and why some
23 families succeed.” Marks Dep., Ex. C at 14:8-15.
24 Professor Marks is a tenured professor in the Division of Family, Child, and Computer
25 Sciences in the Agriculture Department at Louisiana State University. Doc. 286-5 at 16. The
26 courses he has taught include Theories of Family Science, Qualitative Research Methods, Marriage
27 and Family Relationships, and Family Dynamics, id., and issues related to marriage or parenting by
28 same-sex couples are addressed in nearly all of his courses, see Marks Dep., Ex. C at 23:8-16.
10
1 Within the field of family studies, Professor Marks’ primary research has been in the
2 substantive areas of faith and families and African-American families. Id. at 44:10-16. As part of
3 his work, he studies child outcomes and family outcomes, id. at 54:12-17, and he also specializes in
4 research methods, id. at 46:3-5. He has had published or has in press over forty peer-reviewed
5 articles and chapters on matters related to family and family science, he serves as a reviewer for
6 several peer-reviewed journals, and his teaching and scholarship has earned several honors. See
7 Doc # 286-5 at 2, 26. He is also a member of the National Council on Family Relations, a
8 “professional organization focused solely on family research, practice and education.” About
9 NCFR – Who We Are, at http://www.ncfr.org/about/index.asp.
10 Plaintiffs’ primary complaint with Professor Marks’ qualifications is that his scholarship has
11 not focused on the narrow question addressed by his report, as evidenced by the fact that he does
12 not reference any of his own writings. But as a family studies scholar with a specialty in research
13 methods, Professor Marks is well-positioned to comment on the studies that he considers in his
14 report. See Bilson, 648 F.2d at 1239 (holding that a psychiatrist could base expert testimony on
15 psychological tests despite not being a licensed psychologist). Indeed, although he has not written
16 any of the studies, several have appeared in the Journal of Marriage and Family, a journal for
17 which he performs peer-reviews. See Doc # 286-5 at 27-31.
18 b. Professor Marks’ Opinions Are Relevant
19 Not only is Professor Marks qualified, but his testimony is relevant; it “logically advances a
20 material aspect of the proposing party’s case.”7 Daubert, 43 F.3d at 1315. As Proponents have
21 explained, one of the vital governmental and societal interests the traditional institution of marriage
22 serves is promoting the natural and mutually beneficial bond between parents and their biological
23 children. See Doc # 172-1 at 87-90. Professor Marks’ testimony advances this argument by
24 demonstrating that the existence of such a beneficial bond is consistent with high-quality social
25 science.8
26 7
Plaintiffs do not contest that the subject of Professor Marks’ testimony is a proper one for expert
27 testimony. See Finley, 301 F.3d at 1013.
8
Contrary to Plaintiffs’ claims, Professor Marks in his deposition did not as a general matter
28 “withdr[a]w his claim that genetic parent-child relationships are important to child outcomes.” Doc
(Continued)
11
1 In contesting the relevance of Professor Marks’ testimony, Plaintiffs once again

2 mischaracterize Proponents’ case as resting on the assertion that biological parents are better
3 parents than same-sex parents.9 Doc # 285 at 20; see also Doc # 202 at 40 (characterizing
4 Proponents’ arguments as resting on an assertion that “same-sex parents are worse parents than
5 opposite-sex parents”). But as we have explained, see Doc # 213 at 29-30, that is not the point.
6 Rather, the pertinent line of reasoning is (a) there is a unique and mutually beneficial bond between
7 married, natural parents and their biological children, (b) the traditional definition of marriage as
8 the union of a man and a woman promotes this bond, and (c) extending marriage to same-sex
9 couples would not. See Johnson v. Robison, 415 U.S. 361, 383 (1974).
10 Furthermore, an expert’s testimony is relevant if it provides just one “link” in a larger “chain
11 necessary to prevail on a claim.” Stillwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1192 (9th Cir.
12 2007). Thus even playing on Plaintiffs’ turf, Professor Marks’ testimony, despite declining to
13 opine on the relative parenting abilities of same-sex parents and married, natural parents, is relevant
14 to the question of whether extending marriage to same-sex couples could be detrimental to children
15 in another way. Proponents contend that extending marriage to same-sex couples could weaken the
16 institution of marriage, leading to more children being raised by single parents, step-parents, and
17 divorcees. Professor Marks’ testimony indicates that this would on average be a bad outcome for
18 children.
19 c. Professor Marks’ Opinions Are Reliable
20 Finally, Professor Marks’ testimony is sufficiently reliable that it will assist the Court in
21
(Cont’d)
22 # 285 at 21 (emphasis removed). The portion of the deposition transcript cited by Plaintiffs shows
only that Professor Marks withdrew his emphasis on biology with respect to one study that he cited;
23 as a general matter, however, he testified that he “stand[s] behind the report as is.” Marks Dep., Ex.
C at 277:12-20. Plaintiffs’ assertion that Professor Marks knew of no empirical studies establishing
24 a causal connection between biology and good outcomes for children is similarly misleading. Doc
# 285 at 21. Professor Marks’ report focuses on correlation, not causation; as he made clear
25 “[s]ocial science generally does not … have the rigor and the strength to make causal statements.”
Marks Dep., Ex. C at 82:7-9 (emphasis added).
9
26 Plaintiffs’ reliance on General Electric v. Joiner, 522 U.S. 136 (1997) also rests on this faulty
premise. In Joiner, the Court upheld the lower court’s decision to exclude experts who
27 “extrapolated their opinions from … seemingly far-removed … studies. Id. at 144. Because
Professor Marks does not offer an opinion on the “impact same-sex parents have on child
28 outcomes,” Doc # 285 at 21, Joiner is simply inapposite.
12
1 deciding the facts at issue in this case. First, Professor Marks’ “testimony is based on sufficient
2 facts or data.” FED. R. EVID. 702(1). His report expressly refers to scores of studies, see Doc #
3 286-5 at 28-31, and he explains that his findings could have been supported by “hundreds” more.
4 Id. at 11 n.69. Plaintiffs, to be sure, do not identify a single study that he should have considered
5 but did not.
6 Second, Professor Marks’ testimony is “the product of reliable principles and methods.”
7 FED. R. EVID. 702(2). The methodology he has employed is that of the literature review—he has
8 broadly surveyed high-quality social science on the effect of married, biological families on child
9 outcomes. The principle behind this methodology is that one can understand the state of the
10 learning in a particular field by surveying the best research in the area. It is unremarkable that in
11 conducting this review Professor Marks has relied on the opinions of other scholars. Southland Sod
12 Farms v. Stover Seed Co., 108 F.3d 1134, 1142 (9th Cir. 1997) (“[T]he fact that [an expert’s]
13 opinions are based on data collected by others is immaterial.”). And while Plaintiffs may disagree
14 with the conclusions Professor Marks draws from his review, the Court’s gatekeeping function is to
15 test “not the not the correctness of the expert’s conclusions but the soundness of his methodology.”
16 Stilwell, 482 F.3d at 1192 (quotation marks omitted).
17 Third, Professor Marks “has applied the principles and methods reliably to the facts of the
18 case.” FED. R. EVID. 702(3). Professor Marks’ conclusion that “the biological, marriage-based
19 (intact) family is associated with better child outcomes than nonmarital, divorced, or step-families”
20 flows directly from the research that he considered. Doc # 286-5 at 11. That Professor Marks did
21 not in every case ensure that the studies he considered did not include adoptive families in the
22 “intact” category does not render his conclusions unreliable; as he explained the relatively small
23 prevalence of adoptive families means that their inclusion would at most introduce some degree of
24 “noise” into the studies. Marks Dep., Ex. C at 184:14-185:1. Furthermore, Plaintiffs’ contention
25 that Professor Marks “lacks familiarity with relevant studies that would assist him in coming to his
26 conclusions” lacks any meaningful support. Doc # 285 at 23. Professor Marks, to be sure, only
27 identified at his deposition two studies that compared (or may have compared) married, biological
28 parents to same-sex parents. See Marks Dep., Doc # 286-2 at 30:4-32:10. Plaintiffs, however, do
13
1 not identify any additional such studies that Professor Marks overlooked. At any rate, such studies
2 would not be relevant to Professor Marks’ analysis as he concededly did not compare same-sex
3 parents to married, biological parents.
4 Lastly, Plaintiffs impugn the reliability of Professor Marks’ testimony on the basis of his
5 personal and religious views about marriage and family life. See Doc # 285 at 24. Notably, this
6 attack is completely ad hominem—Plaintiffs fail to point to any particular aspect of Professor
7 Marks’ report that evinces bias. And if experts with personal views about the matters at issue were
8 precluded from testifying, the trial in this case would likely be a short one. At any rate, courts have
9 permitted the testimony of experts with much closer ties than Professor Marks has to this case. See,
10 e.g., Douglas v. University Hosp., 150 F.R.D. 165, 169 (E.D. Mo. 1993) (permitting physician to
11 testify as an expert against a hospital in a medical malpractice action for the death of his mother).
12 III. David Blankenhorn
13 a. Mr. Blankenhorn is Qualified to Offer an Expert Opinion in this Case
14 Plaintiffs assert that Mr. Blankenhorn is not qualified to offer an expert opinion in this case
15 because (1) he lacks a Ph.D. and none of his “undergraduate or graduate course work focused” on
16 the issues as to which he seeks to offer an expert opinion, and (2) he does not generally publish his
17 work in peer-reviewed academic journals. Doc # 285 at 24-25. But Rule 702 does not mention any
18 specific credentials or qualifications; instead it provides that an expert may be qualified “by
19 knowledge, skill, experience, training, or education.” FED. R. EVID. 702 (emphasis added). In short,
20 the federal rules recognize—and even a brief review of Mr. Blankenhorn’s qualifications and
21 publications demonstrates—that contrary to Plaintiffs’ suggestion, professional academics do not
22 hold a monopoly on expertise that may be helpful to a court. Indeed, Mr. Blankenhorn has achieved
23 a prominence in his fields of expertise that most professional academics only dream about.
24 “For the past twenty-three years,” Mr. Blankenhorn has “dedicated [his] professional life to
25 studying, writing, and educating others about issues of family policy and family well-being, with a
26 particular focus on the institution of marriage.” Blankenhorn Decl. ¶ 2. “During this time” he has
27 “delivered many academic lectures and public addresses, written extensively, and testified on
28 several occasions before federal and state legislative committees on the topic of marriage.” Id. He
14
1 was appointed by President George H.W. Bush to serve as a member of the National Commission
2 on America’s Urban Families, and “participated in the Commission’s work of examining the
3 condition of urban families and developing recommendations for government policies and programs
4 (as well as actions by other institutions) to strengthen urban families.” Id. ¶ 9. He was also “the
5 founding chairman of the National Fatherhood Initiative, a nonpartisan organization whose mission
6 is to improve the well-being of children by increasing the proportion of children growing up with
7 involved, responsible, and committed fathers.” Id. ¶ 10.
8 Notably, Mr. Blankenhorn is “the founder and President of the Institute for American
9 Values, a non-partisan organization devoted to research, publication, and public education on issues
10 of family policy, family well-being, and civil society.” Blankenhorn Decl. ¶ 3. In his “role as
11 President,” Mr. Blankenhorn “stud[ies] these issues extensively and frequently write[s] and speak[s]
12 publicly about them.” Id. The Institute and its work have been widely praised. To take just one
13 example, Professor William A. Galston of the University of Maryland wrote in 2003 that
14 For more than a decade, the Institute for American Values has tackled some of the
toughest issues facing our country, at home and abroad. Working across partisan lines
15 and with a deep respect for solid evidence and civil argument, the Institute has helped
enlighten public opinion and shape public policy on matters ranging from marriage and
16 the family to the Bush doctrine and America’s relations with the Islamic world.
17 http://www.americanvalues.org/html/what_others_are_saying.html (collecting this and many other
18 similar reviews).
19 From its inception in 1987, the Institute has sponsored a “marriage and family” program
20 area, which focuses on “the status and future of marriage as a social institution.” Blankenhorn Dep.,
21 Doc # 286-3 at 25:18, 28:11-14, 30:4-6. In connection with this program area, the Institute
22 “conduct[s] seminars,” and “sponsor[s] writings” and “research.” Id. 30:7-18. It also issues
23 “reports” written by “team[s] of scholars working collaboratively,” regular “research briefs,” and
24 “an annual survey of marriage called, the state of our unions.” Id. 30:22-31:7. Mr. Blankenhorn is,
25 and has been, “personally involved” in this work. Id. 28:8-10.
26 In connection with his work at the Institute, Mr. Blankenhorn has also been personally
27 involved in many scientific studies. Blankenhorn Dep., Ex. D at 102:20-103:8. “Usually,” his “role
28 has been that [of] conceptualizing the topic of inquiry, of recruiting the scholars to carry out the
15
1 work,” of “participating in or supervising that work” and of “assisting in either a primary way or a
2 nonprimary way in writing up the results and in disseminating those results to the public.” Id.
3 103:10-16. On a number of occasions he has been involved in these studies as “the principle author
4 of the report,” “the person who had the lead role in conceptualizing, developing the methodology,”
5 or “in actually carrying out the research itself.” Id. 104:3-8.
6 Perhaps most importantly, Mr. Blankenhorn has demonstrated his expertise through his
7 published writings. He has written and published two books that are directly relevant to the issues
8 on which he seeks to offer an expert opinion here. These are The Future of Marriage (2006), and
9 Fatherless America: Confronting our Most Urgent Social Problem (1995). Blankenhorn Decl. ¶ 4.
10 The Future of Marriage draws upon Mr. Blankenhorn’s “continuing anthropological, historical, and
11 cultural study of the institution of marriage to address issues including what the institution of
12 marriage is, why marriage has developed the way that it has, the societal interests that the institution
13 of marriage serves, and the impact that could result from changes to the institution (including its
14 potential extension to same-sex couples).” Id. Fatherless America draws on Mr. Blankenhorn’s
15 “continuing study into the impact of family structure on childhood development and wellbeing to
16 chronicle the increasing experience of fatherlessness, detail the negative consequences that flow
17 from fatherlessness, and offer proposals to promote active, responsible fatherhood.” Id. Mr.
18 Blankenhorn has also been the co-editor of several published books on the topics of marriage and
19 family life, including The Book of Marriage: The Wisest Answers to the Toughest Questions (2001),
20 Promises to Keep: Decline and Renewal of Marriage in America (1996), Black Fathers in
21 Contemporary American Society (2003), and Rebuilding the Nest: A New Commitment to the
22 American Family (1990). Id. ¶¶ 5-6. In addition, he has published extensively through the Institute
23 for American Values, Blankenhorn Dep., Doc # 286-3 at 56:13-14, and written numerous “essays
24 addressing marriage and family life” in “popular publications such as the New York Times,
25 Washington Post, Wall Street Journal, Public Interest, and First Things, among others.”
26 Blankenhorn Decl. ¶ 7.
27 The fact that Mr. Blankenhorn has generally published through his own organization, trade
28 publishers, and popular publications rather than academic peer-reviewed journals is of little
16
1 moment.10 For one thing, the Institute for American Values, through which Mr. Blankenhorn
2 publishes most of his work, has its own “peer-review process in place.” Blankenhorn Dep., Doc #
3 286-3 at 56:16-18. For another, peer-reviewed journals plainly recognize Mr. Blankenhorn’s stature
4 and expertise, as evidenced, among other things, by the fact that he has been asked to review (and
5 has reviewed) articles by these journals as part of the peer-review process. Id. 58:5-6.
6 Most important, Mr. Blankenhorn’s publications have been widely praised by leading
7 scholars in his fields of expertise. For example, Professor Mary Ann Glendon calls him
8 “distinguished and impressive” and states that “[n]o one writes about the crisis in American family
9 life with more candor, intelligence, and sympathetic understanding.”
10 http://www.learnoutloud.com/Free-Audio-Video/Education-and-Professional/Law/Gay-Marriage-
11 Debate/26547. And even scholars who disagree with his positions praise the quality of his work.
12 For example Dale Carpenter, a University of Minnesota law professor and gay marriage advocate
13 calls The Future of Marriage “probably the best single book yet written opposing gay marriage.”
14 http://www.americanvalues.org/html/what_others_are_saying.html. Indeed, even Plaintiffs’ expert,
15 Michael Lamb, describes Fatherless America as “easily the most interesting, provocative, and
16 eloquent piece of social commentary published in 1995, whether judged by the quality of the writing
17 or the importance of its topic.” Michael E. Lamb, Book Review, Fatherless America: Confronting
18 Our Most Urgent Social Problem by David Blankenhorn, 58 JOURNAL OF MARRIAGE AND FAMILY
19 526, 527 (1996). Lamb further states that this book “deserves to be widely read and thoughtfully
20 discussed.” Id.
21 In short, far from being unqualified to offer any expert opinion in this case—as Plaintiffs
22 would have it—Mr. Blankenhorn is one of the most distinguished and influential experts in the
23 fields of family policy, family well-being, marriage, fatherhood, and family structure. See
24 Blankenhorn Decl. ¶ 1; Blankenhorn Dep., Doc # 286-3 at 116:10-11. Indeed, with respect to the
25 institution of marriage, his extensive study, writing, and expertise extend to the fields of
26
10
27 Further, Mr. Blankenhorn testified at his deposition that he was “pretty sure” that he has written
“chapters of books” that have been published through an academic peer-review process.
28 Blankenhorn Dep., Doc # 286-3 at 59:9-11.
17
1 anthropology, psychology, history, political science, sociology, and American law. See
2 Blankenhorn Dep., Ex. D at 121:13-126:6.
3 b. Mr. Blankenhorn’s Opinions Are Relevant
4 Among other things, Mr. Blankenhorn intends to offer his opinion regarding the history and
5 purposes of marriage, the interests served by the traditional definition of marriage, and the likely
6 affects of redefining marriage to include same-sex relationships. These issues are plainly relevant to
7 the issues this Court has identified for trial and the constitutionality of Proposition 8. Further, Mr.
8 Blankenhorn’s opinions on these matters “logically advance[] a material aspect of the proposing
9 party’s case.” Daubert, 43 F.3d at 1315. That Mr. Blankenhorn does not plan to offer his opinions
10 about the actual motivation of voters or the official proponents in passing Proposition 8 is of no
11 consequence. Even assuming the relevance of these inquiries (which Proponents do not concede are
12 relevant), they are plainly not the only relevant issues in the case. Nor does it matter that Mr.
13 Blankenhorn’s opinions do not focus on Plaintiffs’ specific allegations, Proposition 8, or the State of
14 California. As his answers at deposition make clear, Mr. Blankenhorn is plainly familiar with
15 Plaintiffs’ legal theory, Blankenhorn Dep., Doc # 286-3 at 75:19-76:11, with the effect of
16 Proposition 8, id. 132:10-134:16, and those features of California law that Plaintiffs’ contend are
17 relevant to its constitutionality, id. 92:7-19. Further, given that Proposition 8 simply restores the
18 traditional definition of marriage, Mr. Blankenhorn’s analysis of that definition is surely relevant.
19 And as the general nature of many of the issues identified for trial by this Court make clear, this is
20 simply not a case that turns on specific or peculiar adjudicative facts applicable only to this specific
21 case. See United States v. $124,579 U.S. Currency, 873 F.2d 1240, 1244 (9th Cir. 1989). Rather, it
22 turns on legislative facts of broader application—precisely the subject of Mr. Blankenhorn’s
23 opinions. See id.; Marshall v. Sawyer, 365 F.2d 105, 111 (9th Cir. 1966).
24 c. Mr. Blankenhorn’s Opinions are Reliable
25 Mr. Blankenhorn’s opinions readily satisfy the requirements of FED. R. EVID. 702. First, his
26 opinions are “based on sufficient facts or data.” As he explained at his deposition, his “view of
27 what marriage is and its public purposes and its dimensions are a result of [his] study of the actual—
28 the actual history, the textured history of the institution itself.” Blankenhorn Dep., Ex. D at 157:7-
18
1 10. The viewpoints and quotations that he presents regarding the purposes of marriage and its
2 relationship to child well-being are representative samples drawn from Mr. Blankenhorn’s “careful[]
3 and comprehensive[]” collection of definitions gathered over “several years” from a search of “the
4 public record of debate and the corpus of modern scholarship.” Id. 153:5-19.
5 Second, Mr. Blankenhorn’s opinions are based on “reliable principles and methods.” FED.
6 R. EVID. 702(2). Mr. Blankenhorn’s opinions regarding the historical structure of marriage, and the
7 prevalence of the “historically foundational and historically very widespread and commonly
8 accepted understanding” of marriage, Blankenhorn Dep., Ex. D at 152:1-3, are verifiable
9 empirically. See, e.g., id. 184:11-15. And the normative conclusions that he draws from his
10 historical inquiry follow logically from that inquiry and are fully consonant with the views of
11 numerous other prominent scholars, as illustrated by the numerous quotations and studies cited
12 throughout his report. See, e.g., Blankenhorn Decl. ¶¶ 23, 37.
13 Mr. Blankenhorn’s predictions regarding the likely effects of redefining marriage to include
14 same-sex relationships are likewise based on reliable principles and methods. Given the novelty of
15 experiments with recognizing same-sex relationships as marriages, empirical evidence of the effects
16 of these experiments is very scarce. However, Mr. Blankenhorn explains why redefining marriage
17 in this manner would further the deinstitutionalization of marriage and shows that prominent
18 supporters and opponents of such a redefinition agree. See Blankenhorn Decl. ¶ 44. His predictions
19 as to the likely consequences of such deinstitutionalization are logical, were developed thoughtfully,
20 based on his own reflection and his systematic discussions with both proponents and opponents of
21 extending marriage to same-sex relationships, and are consistent with the results of other legal
22 changes that have furthered the deinstitutionalization of marriage. See, e.g., Blankenhorn Dep., Doc
23 # 286-3 at 315:14-316:20. Indeed, Mr. Blankenhorn’s predictions about the likely effects of the
24 recognition of same-sex relationships as marriages are at least as methodologically rigorous as—and
25 far more persuasive than—the predictions offered by Plaintiffs’ experts.
26 In all of these respects, it is plain that far from being “ipse dixit,” General Electric Co. v.
27 Joiner, 522 U.S. 136, 146 (1997), Mr. Blankenhorn’s opinions reflect “the same level of intellectual
28 rigor that characterizes the practice of an expert in the relevant field[s]," Kumho, 526 at 152, of,
19
1 inter alia, history and family policy analysis. In arguing otherwise, Plaintiffs’ simply disagree with,
2 or mischaracterize, Mr. Blankenhorn’s testimony. For example, Plaintiffs’ claims that Mr.
3 Blankenhorn’s opinions regarding the purposes of marriage are illogical are simply a reiteration of
4 their litigation positions and amount to no more than a disagreement with Mr. Blankenhorn’s
5 conclusions. The Court’s gatekeeping function, however, is to test “not the correctness of the
6 expert’s conclusions but the soundness of his methodology.” Stilwell, 482 F.3d at 1192.
7 Furthermore, at his deposition Blankenhorn logically and forcefully explained why Plaintiffs’
8 arguments do not undermine his conclusions. See Blankenhorn Dep. Tr. 177:9-193:22.11 Similarly,
9 Plaintiffs’ claims that Mr. Blankenhorn is unfamiliar with and did not rely upon any “studies that
10 compare one family where both parents have a biological connection to the child and a family where
11 one or both parents is not biologically connected to the child,” Pls’ Mot. 19, is simply false. Mr.
12 Blankenhorn’s declaration and deposition testimony plainly addressed studies comparing children
13 raised by intact biological families with children raised, inter alia, by stepfamilies. See, e.g.,
14 Blankenhorn Decl. 37, Blankenhorn Dep., Ex. D at 262:13-263:10. Furthermore, Mr.
15 Blankenhorn’s deposition testimony demonstrated that Mr. Blankenhorn is conversant with the
16 literature comparing children raised by intact biological families with children raised by adoptive
17 families. See id. 263:22-271:18. Indeed he is currently “directing a study now that looks at exactly
18 this question.” Id. 266:20-21. And Plaintiffs’ suggestion that Mr. Blankenhorn’s opinions
19 regarding children raised by same-sex parents are somehow inconsistent with his other opinions
20 simply reflects a misunderstanding of Mr. Blankenhorn’s opinions, as well as Proponents’ theory of
21 the case. See supra, pp. 12-13.
22 Likewise, given that Mr. Blankenhorn’s opinions offered in this case have grown “naturally
23 and directly out of research [he has] conducted independent of the litigation,” Daubert 43 F.3d at
24 1317, there is no methodological inadequacy in his having prepared his report by devoting “some
25 days and weeks to reading and trying to organize [his] thoughts and trying to refresh [his]
26 11
Plaintiffs’ claim that Mr. Blankenhorn’s acknowledgement that there have been other causes of
27 the deinstitutionalization of marriage is somehow inconsistent with his conclusion that recognizing
same-sex relationships as marriage would “mean the further, and in some respects full,
28 deinstitutionalization of marriage,” Blankenhorn Decl. ¶ 69 (emphasis added), likewise lacks merit.
20
1 recollection about other previous work” that he had done. Blankenhorn Dep., Ex. D at 101:17-21.
2 And Plaintiffs’ claim that Mr. Blankenhorn had not read the materials considered listed in his expert
3 report is a blatant distortion of the deposition testimony, which makes clear that Mr. Blankenhorn
4 read the overwhelming majority of these materials in full, and the remaining works in relevant part.
5 See Blankenhorn Dep. Tr. 112:4-116:2 (discussing each source specifically).
6 Finally, Mr. Blankenhorn has applied his principles and methods reliably to the legislative
7 facts at issue in this case. As discussed above, the fact that he has not addressed the specific
8 adjudicative facts of Plaintiffs’ claims simply reflect that this case turns not on such particular
9 matters but on more general propositions.
10 CONCLUSION
11 For these reasons, Plaintiffs’ motion in limine should be denied.
12
13 Dated: December 11, 2009

COOPER AND KIRK, PLLC
14 ATTORNEYS FOR DEFENDANT-INTERVENORS
DENNIS HOLLINGSWORTH, GAIL J. KNIGHT,
15 MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM,
MARK A. JANSSON, AND PROTECTMARRIAGE.COM –
16 YES ON 8, A PROJECT OF CALIFORNIA RENEWAL
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18 By: /s/Charles J. Cooper

Charles J. Cooper
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Case3:09-cv-02292-JW Document302-1 Filed12/11/09 Page1 of 48
Exhibit A
Copyright © eContent Management Pty \jiA. Journal of Family Studies (2007) 13: 133—178.
Redefining marriage or
deconstructing society:
A Canadian case study
KATHERINE K YOUNG
James McGill Professor, Faculty of Religious Studies, McGill University, Canada
PAUL NATHANSON
Faculty of Religious Studies, McGill University, Canada
ABSTRACT
In this article, we examine the pivotal Canadian cases that led to the legalization of same-sex
marriage in 2005- Using historical, cross-cultural, ethical, and existential arguments, our aim is
to alert countries still struggling with this topic to the rational and substantial grounds for main-
taining the historic definition of marriage — specifically, the rational connection between hetero-
sexuality and the purposes of marriage — and how to do this with minimal impairment to gay
couples and their children. Toward this end, we answer six questions: (1) Was the court's redefini-
tion of marriage in line with international law? (2) Did its definition of (straight) marriage do
justice to the historical and cross-cultural evidence? (3) Was the exclusion of gay couples from
marriage discriminatory according to s. 15(1) of the (Canadian) Charter of Rights and Free-
doms? (4) Even if the historic definition of marriage really had discriminated against gay couples,
could it have been justified according to s. 1 of the Charter? (5) What risks are involved in sever-
ing the historic connection between the purpose of marriage and its exclusively heterosexual defini-
tion? (6) To maintain the historic definition of marriage, could we have discriminated with only
'minimal impairment' to gay couples? (7) What were the underlying judicial strategies used by the
Canadian courts? (8) Was there a problem of judicial activism is the Canadian cases?
Keywords: marriage; same-sex marriage; children; rights; law; Canada
W hen seven same-sex couples' applied in
2001 for civil-marriage licenses at Toron-

15(1) in The Canadian Charter of Rights and Free-
doms (1982). The court gave parliament two

to's city hall, the clerk refused to issue them but years, moreover, to redefine marriage (because
nonetheless transferred their applications to the that is a federal matter, not a provincial one in
Divisional Court of Ontario Superior Court of Canada, where, according to the Constitution
Justice. According to the unanimous ruling in Act of 1867, marriage is defined by the federal
Halpern (2002),^ the common-law definition of government but administered by provincial gov-
marriage infringed their equality rights under s. ernments); otherwise, the court would impose its
Volume 13, Issue 2, November 2007 JOURNAL OF FAMILY STUDIES 1 33

Katherine K Young and Paul Nathanson
own redefinition. In response, the federal govern- being, we note that even though legal structures
ment appealed this ruling and also established a change from one country to another, the political
parliamentary committee to hold public hearings forces that produce judicial activism do not. We
across the country. The Ontario Court of Appeal believe that judicial activism is alive and well
heard Halpern (2003)3 a year later. It upheld the everywhere in the Western world.
lower court's ruling but went further by allowing Because of the widespread belief among politi-
gay couples to get marriage licenses immediately. cized academics that the opinions of outsiders -
After that, events moved very quickly. Within straight people in this case - are irrelevant or even
a few days, the federal government abolished its offensive, on the grounds that only insiders can
parliamentary committee (long before it could know anything about the political forces that
have produced a report) and announced that it affect them, we should say something here about
would prepare legislation to redefine marriage. A ourselves. One of us is a man, the other a woman;
few weeks after that, the federal government test- one is gay, the other straight; one is unmarried,
ed the legal legitimacy of its new definition of the other married, one is Jewish, the other gentile;
marriage by sending several 'reference questions' one specializes in Western civilization, the other
to the Supreme Court. In 2004, the justices ruled in Eastern civilizations. Together, then, we cannot
that the federal government alone may define be dismissed easily as uninvolved outsiders.
marriage but also that it may not compel any reli- We will try to answer the following questions
gious official to perform same-sex weddings. In about the Canadian redefinition of marriage but
2005, the House of Commons passed Bill C-38, in ways that will be helpful to non-Canadian
which redefined marriage and thus legalized lawyers, judges, legislators, and social scientists.
same-sex marriage. (1) Was the court's redefinition of marriage in line
The debate over same-sex marriage is over in with international law? (2) Does its definition of
Canada. The debate is not over in other coun- (straight) marriage do justice to the historical and
tries, however, so for this reason the Canadian cross-cultural evidence? (3) Is the exclusion of gay
case study should be of interest. Even though the couples from marriage discriminatory according
strictly legal arguments on both sides are some- to s. 15(1) of Canada's Charter of Rights and Free-
what different from those used elsewhere, the doms^. (4) Even if the historic definition of mar-
other arguments on both sides - moral, sociologi- riage really had discriminated against gay couples,
cal, psychological, and political — are identical. could it have been justified according to s. 1 of the
This brings us to our purpose in writing. Our Charter} (5) What risks are involved in severing
field is religious studies (not theology), which the historic connection between the purpose of
overlaps with botb the humanities and the social marriage and its exclusively heterosexual defini-
sciences. Not being lawyers, we are outsiders to tion? (6) Could Canadian law have discriminated
legal debate. Thus our primary arguments are not with 'minimal impairment', according to the
legal ones but historical, anthropological, moral, Oakes test, to gay couples?
existential, and logical ones. Readers will appreci- Before concluding, we will also discuss: (7) the
ate, however, that law is not autonomous. To be underlying judicial strategies; and (8) the prob-
accepted as a legitimate expression of society, law lem of judicial activism.
must rest on a coherent moral or philosophical
foundation. The legalization of same-sex marriage W A S THE COURT'S REDEFINITION
in Canada does not. It rests on a political founda- OF MARRIAGE IN LINE WITH
tion, one that is based, in our opinion at least, INTERNATIONAL LAW?
partly on expediency. Later on, we will discuss The UN has produced several documents that
what critics call 'judicial activism'. For the time speak directly or indirectly about the rights of
134 JOURNAL OF FAMILY STUDIES Volume 13, Issue 2, November 2007

Redefining marriage or deconstructing societ)'
children: its Universal Declaration of Human tion of Human Rights, by the way, says that
Rights; its Convention on the Rights of the 'everyone has the right.' Only one article in the
Child; and its International Covenant on Civil entire document, article 16, says that 'Men and
and Political Rights. These documents assume women... have the right to marry and to found a
the cross-cultural primacy of marriage and par- family'. It would surely be presumptuous to claim
enting in the historic sense of involving biological that this happened by chance, that those who
parents of the opposite sex. These documents wrote this declaration had no reason for using
would surely have been very precise otherwise. this specific wording. Clearly, they wanted to
Consider article 7, for example, of the Con- make it clear that the rights to marriage and
vention on the Rights of the Child: 'The child founding families applied specifically to 'men and
shall be registered immediately after birth and women', not to 'everyone'.
shall have the right from birth to a name, the Western lobby groups might yet convince the
right to acquire a nationality and, as far as possi- UN to modify its documents with new ideas
ble, the right to know and be cared for by his or about marriage in mind. So far, though, no one
her parents'. By not specifying any parental type, has succeeded. In no current document does the
this legal text clearly refers to the most obvious UN identify same-sex marriage as a human right.
type: biological parents of opposite sexes. By Documents do prohibit discrimination on vari-
adding 'as far as possible', it alludes to the fact ous grounds, but these do not include sexual ori-
that some children lack biological parents because entation. Canadians who declared that same-sex
of death or abandonment. Historically and cross- marriage is a human right, therefore, hardly relied
culturally, adoption has been a very common way on support from the international documents
of handling exceptional circumstances. It would that their own government had signed. In other
take a great deal of imagination to see in that pas- contexts, ironically, Canadians have insisted on
sage from the United Nations any allusion to conformity to UN documents.
more innovative arrangements. And two or more
parents of the same sex would indeed be more DOES THE COURT'S DEFINITION OF
innovative. MARRIAGE DO JUSTICE TO THE HISTORI-
Now, consider article 23 of the International CAL A N D CROSS-CULTURAL EVIDENCE?
Covenant on Civil and Political Rights: 'The In a word, no. It does express the attitude of
right of men and women of marriageable age to many contemporary Canadians, but it does not
marry and to found a family shall be recognized'. follow directly from any historical or cross-cultur-
Unlike all other passages, which refer to the rights al precedent. Historical and cross-cultural studies
of'everyone', this one refers specifically to a right provide us with an empirical foundation for
of 'men and women'. It would require a major analysis. They avoid ethnocentrism and reveal
leap of faith to believe that this anomaly was acci- not only the variable features of marriage but also
dental. That possibility was tested, nevertheless, the universal and nearly universal ones. Because
in 1997. This case involved a gay couple in New heterosexuality has been the universal norm, we
Zealand. Wanting to marry,"^ they argued that should at least think very carefully before choos-
New Zealand's Bill of Rights, which - unlike ing another norm. We admit that historical and
Canada's - explicitly forbids discrimination on cross-cultural precedents per se do not justify
the basis of sexual orientation - gave them the maintaining the status quo, which is why we con-
right to do so. But the United Nations Human sider other factors as well. Among these is risk.
Rights Commission disagreed by citing article We will discuss that later on. Meanwhile, we note
23.5 In 2002, moreover, an appeal was rejected.'' that the very first country to include gay couples
Almost every article in the Universal Declara- in its definition of marriage was the Netherlands,

which legalized the new definition in 2001. 'love and commitment' really are universal and
Canada did the same thing only four years later, therefore among the most important features of
not nearly enough time for anyone to have evalu- marriage, why would that be so? The justices
ated the Dutch experience, let alone to have eval- offer no explanation; they simply assert that mar-
uated its own social experiment. In this section, riage has the following features: love, commit-
we will discuss: (a) the court's underlying ment, and monogamy.
assumptions about marriage; and (b) a cross-cul- The justices refer repeatedly to 'love'.7 That
tural definition of marriage. word has a long history in Western thought. Until
recently, though, it did not refer to an emotion. It
The Court's underlying assumptions referred to an act of the will. The early church
about marriage taught Christians to love their neighbors, to give
In Halpern (2003), a working definition of only one example, but not necessarily to like them
'marriage' appears as part of the general preamble: personally. Of paramount importance to Chris-
tians ever since has been the ideal of seeing God
Marriage is, without dispute, one of the most
in their neighbours, just as they see God in Jesus.
significant forms of personal relationships. For
They should be prepared to sacrifice themselves
centuries, marriage has been a basic element of
for others, moreover, just as Jesus did for every-
social organization in societies around the
one. Agape is ultimately about self-sacrifice, not
world. Through the institution of marriage,
about emotional gratification. Jews have made
individuals can publicly express their love and
similar distinctions. Even in ancient times, of
commitment to each other. Through this insti-
course, marriage was ideally between two people
tution, society publicly recognizes expressions
who liked each other. But it was not necessarily
of love and commitment berween individuals,
about that and certainly not only about that. The
granting them respect and legitimacy as a cou-
most important kind of love for religious people,
ple. This public recognition and sanction of
at least in Western societies, has always been that
marital relationships refiect society's approba-
which people direct outward to children, commu-
tion of the personal hopes, desires and aspira-
nity, society and ultimately God. That theological
tions that underlie loving committed conjugal
context no longer exists for most people in our
relationships. This can only enhance an individ-
society, not even for many who belong to religious
ual's sense of self-worth and dignity (at para. 5).
communities. Neither, however, does any philo-
This passage indicates to us that the Court's sophical context. The only context that remains
underlying assumptions about marriage are for many, therefore, is an emotional, or sexual
not only very pervasive in Canada but also one. And it is not easy to build a moral founda-
very dubious. Because of these false assumptions, tion, much less a coherent worldview, on either.
we conclude that the justices relied on inadequate It would be harder to 'prove' that few people
observation and made unwarranted generaliza- care about philosophy per se, because it is always
tions. The latter include both anachronisms hard to prove the absence or even relative absence
(imputing a current value to the past historical of something. But it should be obvious to every-
record) and examples of 'cultural imperialism' one that hardly any arguments put forward by
(imputing a Western value on other societies, advocates of same-sex marriage rely on philo-
which have very different ones). sophical claims. Their strongest claims have been
legal and psychological ones. These are often
Underlying assumption 1: All you need is com- couched in moral claims, to be sure, but the latter
mitment and (monogamous) love. Even if we are usually detached from systematic examina-
were to assume for the sake of argument that tions of moral principles per se.

Redefining marriage or deconstructing society
The court's discussion of 'love' amounted to riage, gay or straight, relies entirely on the un-
nothing more than popular psychology. It relied precedented glorification of emotionalism. Justice
on the following syllogism: Marriage is an institu- Blair implies that emotion is more important
tion designed to foster the love between two peo- even for purely legal purposes than reason; how
ple; gay people can love each other just as straight people feel is more important than what they
people can; ergo, marriage should include gay think.9 This assumption allows him to support
couples. The second statement is true, and the same-sex marriage even after admitting that good
third follows logically from it. Because the first arguments had been made against it.
statement is false, however, this line of reasoning We live now, it could be argued, in an age of
makes no sense. Marriage is a complex institu- 'neo-romanticism'. After two centuries of struggle
tion. Fostering the emotional gratification of two between the glorification of reason (exemplified
adults is only one of its functions and not the by rationalism during the Enlightenment) and
most important one from either a cross-cultural the glorification of emotion (exemplified by
perspective or a historical one. We find it hard to romanticism), the latter has clearly won, at least
believe that any government would consider it for the time being. Our main point here is on the
important to recognize this form of love as an replacement of philosophical (let alone theologi-
end in itself. To do so would be to endorse the cal) claims by emotional or psychological ones. This
idea that the government has a compelling inter- (like much else in this debate) is part of a larger
est in emotional gratification. cultural trend.
As a foundation for marriage, 'commitment' Among the first to notice this phenomenon
might now make more sense than 'love'. In was Lasch (1979:7), who wrote that the 'contem-
Halpern (2002), for instance. Justice Blair says porary climate is therapeutic, not religious. Peo-
that 'the constitutional and Charter-'ins'p'irtA val- ple today hunger not for personal salvation, let
ues which underlie Canadian society today dic- alone for the restoration of an earlier golden age,
tate that the status and incidence inherent in the but for the feeling, the momentary illusion of
foundational institution of marriage must be personal well-being, health, and psychic security.
open to same-sex couples who live in long-term, Even the radicalism of the sixties served, for
committed, relationships'.^ It could be argued many of those who embraced it for personal
that a public declaration of legal accountability — rather than political reasons, not as a substitute
shared assets, say, and shared labor — would pro- religion but as a form of therapy'.
vide greater security than a private emotional This is hardly surprising in the age of iconic
bond, especially when one partner is more vul- talk-show gurus. The latter, conduits of fallout
nerable than the other for some reason But that is from neo-romanticism, would transform the gov-
not a good enough reason to redefine marriage. ernment into nothing more than a group thera-
Legal accountability for shared goods and services pist or 'mental-health-care provider'. But that is
would not explain the alleged universality of in keeping with popular notions about both mar-
'commitment' in defining marriage, by the way, riage and the State. You might never guess, nowa-
because not all societies have supplied basic needs days, that both had a long history before the
through personal relationships alone; many have advent of talk shows, which often feature guests
done so through the tribe, clan, extended family, known as therapists and often focus on 'self-
and so on. esteem'. But Oprah Winfrey'O and Dr. PhiU'
have not brought us to this point by themselves.
Underlying assumption 2: Emotion trumps Directly or indirectly, they have absorbed forms
reason. The justices assume that emotion is more of feminism that glorify emotional responsiveness
important than reason. Their definition of mar- as something innately female and deplore rational

abstraction as something innately male (Nathan- (2004), for example, American courts have wor-
son 1999). Goleman (1995), for instance, popu- ried too much about thinking and not enough
larized the belief that emotion is just as important about feeling.
as, perhaps even more important than, reason (al- Even many academics, whose professional rai-
though others had used both that term and 'emo- son d'etre was once to seek knowledge through
tional literacy' and still others have preferred 'EQ' the disciplined use of reason, have succumbed to
as the counterpart of'IQ'). When we checked romanticism. For them, it takes the form of post-
recently, the Library of Congress listed 52 entries modernism, which supports political ideologies
under that subject alone (excluding subdivisions) based on identity (Norris 1993; Ellis 1989; Patai
and no fewer than 65 on Oprah. 1998; Shannon 2001; Nealon 1998; Hoover
Psychologists are not the only professionals 1997; Gracyk 2001; Coff & Dunn 2004). Taylor
interested in emotion. According to Rosenbaum (1992) uses the word 'multiculturalism' instead of
(2004), one reason for the law's inadequacy is 'postmodernism' but refers to the same phenome-
that lawyers seldom consider what participants non. No matter what the focus of identity -
have at stake emotionally; lawyers should focus nation, race, ethnicity, language, class, sex, sexual
more on feeling and less on thinking. This book orientation, and so on - it is fundamentally an
continues a trend in legal circles that produced emotional category. And neo-romanticism is
the victims'-rights movement. Emotionally charg- characteristic not only of contemporary academ-
ed 'victim-impact statements' are intended to ics and political activists also, filtered down to all
influence sentences. Similar developments have levels of society through popular culture, of
taken place in other fields, some of them closely almost every public debate. Nathanson (1999),
related. During the 1990s, as several books have for example, points out that those in Britain who
pointed out (e.g. Showalter 1997; Nathanson and chose an emotionally extravagant way of mourn-
Young 2006), lawyers and judges cooperated with ing for Princess Diana were openly hostile to
psychologists and journalists to endorse what those who did not. For further discussion on the
amounted to a witch hunt over 'recovered memo- effects of neo-romanticism on scholarship, see
ry syndrome' (which was eventually discredited). Young (1999: 7-8, 12).
Although we can hardly disapprove of emotion, a
universal feature of human existence, of greatest Underlying assumption 3: Polygamy is not
interest here is the underlying assumption that worth taking seriously. The justices say that
rational thought, which would have prevented marriage is monogamous almost by definition. In
things from getting out of hand, was subordinat- Halpern (2002), for instance. Justice Blair says
ed to emotional hype. that monogamy is a nearly universal feature of
Emotion is part of life, of course, and ack- marriage. As he puts it, 'anthropological, socio-
nowledging it is not a bad thing per se. But many logical and historical studies reveal that from time
people now believe that the ultimate purpose of immemorial "marriage" has almost universally
law, and of the State itself, is to make them feel been viewed as a monogamous union between a
good about themselves. Whether anything makes man and a woman. This has been true across cul-
sense on intellectual or moral grounds is another tures, across religions, and across polities, and
matter. According to Justice Blair in Halpern seems clearly to have been the norm'.'3 Similarly,
(2002), the evidence presented by those who the justices in Halpern (2003) say that '[m]arriage
oppose same-sex marriage 'does not reflect the has always been understood as a special kind
same personal poignancy as that of the Ap- of "monogamous opposite-sex union".''^ We dis-
plicants'.'2 And this attitude is by no means agree. Marriage has always been understood as an
confined to Canada. According to Rosenbaum 'opposite-sex union', but not always as a monoga-

mous one. In fact, most societies have been The most obvious exemplar of egalitarian femi-
polygamous. Polygamy comes in two 'sizes': nism would be Friedan (1963). Her basic argu-
polygyny (many wives) and the less common ment in the Feminist Mystique is that women are
polyandry (many husbands). According to just as ambitious and just as capable as men in all
Quale's summary (1988: 60) of research by Ruth ways; the only things that prevent women from
L. Munro and Robert H. Munro, 'about 39% of achieving their goals — career goals - are the com-
the 863 societies surveyed practised limited peting needs of children and men along with the
polygyny; about 45% practised general polygyny'. imposition by men of feminine stereotypes that
Christianity has always required monogamy disable women. Some feminists now complain
and has therefore informed Western culture that her underlying premise, the interchangeabili-
accordingly. Monogamy might or might not be ty of men and women, has obscured the ways in
worth preserving, but precedent per se is not a which women are essentially different from men:
good enough reason for preserving anything. not merely because of their childbearing capacity
After all, there were many precedents for slavery. but because of closely related psychological and
even moral characteristics. Among these feminists
Underlying assumption 4: The individual is are those who say — directly or indirectly, explicit-
paramount. The justices say not once but several ly or implicitly, overtly or covertly — that women
times that marriage is about allowing 'individuals' are not only different from men but also superior
to 'publicly express their love and commitment to to men. For critical comments on that point of
each other'.'5 Marriage, they add for good meas- view, see Morton and Knopff (2000), Manfredi
ure, has been about their 'personal hopes, desires (2000), and Nathanson and Young (2006).
and aspirations' or their 'sense of self-worth and
dignity'."' This is consistent with the extreme Underlying assumption 6: Norms are harmful.
individualism of our society as a whole. By that, Ultimately, the justices assume that society is infi-
we do not refer to the mentality that emerged nitely flexible. And yet, says legal theorist Glenn
during the Renaissance and found its fullest (2000: 15), all societies have found it necessary to
expression during the Enlightenment (to be dis- establish behavioural norms:
cussed below). We refer instead to a mentality
that would quickly transform any society into a Why does tradition have to be dealt with and
collection of autonomous individuals. Even now, why must a process for dealing with it have to
ours is dissolving into groups of individuals with be developed? We could simply forget about it,
the same 'identity'. or say that it is simply history which should
stay where it is, in the books. Some attempt to
Underlying assumption 5: Social construction- do this, but are never fully successful. The
ism. The justices imply that sex - maleness or main reason we are constantly addressing tra-
femaleness - is nothing more than a 'social condition appears to be the constraint which it
struction'. Postmodernists like this idea, which imposes on our lives. Tradition, through its
has been popular among feminist and gay pastness, provides presently available lessons as
activists for decades. It is now possible to claim, to how we should act... The judgment of
therefore, that men and women are interchange- many, down through time, confers authority,
able. Early feminists argued that men and women even legitimacy - at least presumptively - on
were almost interchangeable. (They did not care the lessons of tradition. Even if we do not per-
about biological asymmetry, which favors women, ceive the lessons provided by tradition, there
because there is at least one thing of profound will be others who do perceive them and who
importance that women can do but not men.) will urge them upon us. So tradition is

unavoidable in living our daily lives. Every- culture defines norms, gives them authority, and
thing is in the process of dealing with it. encourages or even enforces them. He illustrates
the interaction of normativity and religion, espe-
With that in mind, Glenn (2000:323) writes that cially in the 'webs of belief that characterize
'all tradition is normative, that is ... it provides a small-scale cultures (what he calls 'chthonic'
model, drawn from the past, as to how one ones), world religions (such as Judaism, Hin-
should act. Legal traditions, of all traditions, duism, Islam, and Confucianism), and civil- or
should not depart from this general phenome- common-law systems (which have had close links
non, since law is perhaps the most normative of with Christianity).'7 Frayser (1985:248) agrees
human endeavours. There are clear differences, that 'rules are part of the definition of marriage
however, amongst legal traditions in terms of the in the sense that marriage is an intrinsically
extent to which they claim to regulate human human social relationship. Humans partially
conduct'. organize their lives in conformity with the rules
We define 'norms' as cultural ideals, models, they have created'.
paradigms, or collective preferences. Every society
must make choices; no society can 'have it all' by A cross-cultural definition of marriage
saying that 'anything goes'. And choosing one The justices present no historical or cross-cultural
thing inevitably means not choosing others. support for their working definition of marriage.
Because nature itself does not enforce these cul- As it happens, their definition is anything but
tural norms, though, every society has found it universal. In fact, it is highly idiosyncratic. As we
necessary - whether formally or informally, say, 'love and commitment' have been common
directly or indirectly - to reward some forms of but by no means universal features of marriage.
behavior and either not reward or punish others. Monogamy has been far from universal. Other
Reynolds and Tanner (1983:5) put it this way: features of marriage, however, have been.
'Cultures, and their ingredients like religions, Cross-cultural studies reveal that marriage does
are... largely independent of genetic causal mech- not vary completely from one culture to another.
anisms. But they are nonetheless at the ecological It is an identifiable institution, not a congeries of
interface; it is they that determine how biologi- miscellaneous features. Young's (2000) Affidavit
cally successful, in terms of survival and repro- (at paras. 2-5; with minor changes) lists the uni-
duction, individuals and their groups will be'. versal, nearly universal, and variable features of
However, the mechanisms have varied a great marriage. Young follows Frayser's (1985) analysis
deal from one society to another and from one of marriage, which relies on a sample of 62
period to another even within the same society. African, Mediterranean, Eurasian, Pacific, North
Small-scale societies often rely on group control: American and South American societies. This
Act this way, and you will be shunned by society; analysis relies, in turn, on the full cross-cultural
act that way, and you will be honored by society. sample of 186 societies by Murdock and White
Large-scale societies usually find it necessary to in 1969, which represents eight types of economy
add individual control: Act this way, and you will and five types of lineage or descent. Frayser exam-
be guilty even if not publicly condemned; act ines ethnographic information on topics such as
that way, and you will be justified even if not the 'establishment' of marriage (age, choice of
publicly acclaimed. spouse, agreement to marry), weddings, rights
Glenn (2000) uses not only tradition but also transferred, dissolution, remarriage, widowhood,
normativity in his attempt to reconceptualize the and so forth. In addition, she provides informa-
discipline of comparative law as a truly cross-cul- tion under other headings: children; number of
tural discipline. He examines the ways in which children; barrenness; control over reproduction;

abortion; restrictions on intercourse; restrictions to reproduce itself. Many advocates of same-sex

on partner (incest taboo); premarital sex; extra- marriage, Eskridge (1996) being among the best
marital sex; punishments for violating norms; known, have tried to show that cross-cultural evi-
and so forth (Frayser: 471-475). dence is contradictory and therefore useless (but
In her affidavit. Young tests Frayser's definition only when it suits them). We find it worthwhile,
of marriage (derived from a cross-cultural study therefore, to note the importance of a compara-
of marital norms) against her own (derived from tive perspective.
a comparative study of world religions that have From one perspective, it is true, the variable
survived from earlier civilizations: Judaism, Con- features of marriage are precisely what make its
fucianism, Hinduism, Islam, and Christianity). definition in any particular society distinctive.
Using both Frayser's data and her own, in 2000, But focusing on the definition of marriage in any
Young arrived at the following definition:'8 one society makes it hard to know which features
are truly distinctive, or local, and which occur in
Its universal features include the fact that mar-
many other societies or even in all of them. Pat-
riage (a) encourages procreation under specific
terns emerge, in short, only when we can com-
conditions; (b) recognizes the interdependence
pare two or more societies. Otherwise, variables
of men and women; (c) defines eligible part-
can mask the universals. It could be argued that
ners; (d) is supported by authority and incen-
focusing on universals and nearly universals pro-
tives; (e) has a public dimension; and (f)
duces the methodological problem of essential-
provides mutual support not only between
ism. But that is a false problem for three reasons.
men and women but also between them and
First, there really is an empirical basis for the exis-
children.
tence of these features. Second, using inductive
Its nearly universal features are (a) an emphasis reason to discern patterns is a fundamental char-
on durable relationships between biological acteristic of scholarship. And third, any phenom-
parents; (b) mutual affection and companion- enon so common as to be either universal or
ship; (c) family (or political) alliances; and (d) nearly universal surely reveals something basic in
an intergenerational cycle (reciprocity between the human condition. Because the most common
young and old). biological tendency for human beings is hetero-
sexuality — our species reproduces sexually, which
As for the many variable features, these include
has an evolutionary advantage over the asexual
polygamy or monogamy, [and polygyny or
reproduction of some other species — and because
polyandry,] endogamy (marrying within a
the heterosexual culture of marriage is the neces-
group) or exogamy (marrying outside it); mar-
sary complement of heterosexual biology, every
rying up in status or marrying down; arranged
human society has actively fostered it.'5
marriage or chosen; dowry (from the bride's
family) or bride price (goods given or services 'Mutual affection and companionship' are in
performed by the groom); sexual equality or the nearly universal category, not the universal
hierarchy; many children or few as the ideal; one. That is partly because some small-scale soci-
extended family or nuclear; residence with eties do not base their social structures on long-
bride's family, with the groom's, or neither; term unions between biological parents. Quale
divorce allowed or prohibited; and so on. (1988: 2-3) notes that in matrilineai societies a:
Some societies celebrate alternatives to marriage man may take more of the ongoing responsi-
(such as monastic celibacy) and tolerate others bility for providing for his sister's children than
(such as single people or gay couples) but only he does for providing for his wife's children,
when the larger society is in no danger of failing while his wife similarly expects her brother to
Volume 13, Issue 2, November 2007 JOURNAL OF FAMILY STUDIES 141

take more interest in her children than her 'marriage' in each society but not so broad that
husband does. Yet these societies, too, recog- it does not sufficiently differentiate marriage
nize and encourage the husband-father to love from other relationships... [M]y own defini-
his children... [EJven the Nayar anticipated tion of marriage derives from a review of the
that the publicly acknowledged father of a careful attempts to define it made by other
child would take an affectionate interest in it. social scientists, e.g. Gough and Goodenough,
When the specific political and social circum- as well as from my analysis of ethnographic
stances which had led to de-emphasizing the reports of marriage in a variety of societies. I
husband-father's role changed during the 19th have found that I can most consistently and
century, that affectionate interest proved so usefully identify marriage in cross-cultural
strong that the whole property-holding, mar- contexts by using the following definition.
riage, and inheritance system was overturned. Marriage is a relationship within which a
Both men and women evidently wanted to be group socially approves and encourages sexual
able to treat their spouses as primary partners intercourse and the birth of children... When
in raising the children born to them. we are talking about marriage, we are consider-
ing the dimensions of a relationship, regardless
But many large-scale societies have preferred of its consequences. In a marriage, people can
arranged marriages, not marriages based on per- be reproductive. In purely sexual relationships,
sonal choice (although they encourage compan- they should not be reproductive.
ionship, too, as a secondary phenomenon that
supports marriage). Our point here is to establish According to Quale (1988: 2), moreover, mar-
the historical and cross-cultural record, however, riage:
not to argue for arranged marriages.
Even though 'love and commitment' are the is an alliance whose members ordinarily hope
reasons that most people now give for wanting to it will be expanded and continued through the
marry, they are not necessarily the underlying coming of children... Marriage, as a socially
ones. People might or might not be conscious of recognized linking of a specific man to a spe-
the latter, because these are so deeply embedded cific woman and her offspring, can be found
in culture that they are now implicit rather than in all societies. Through marriage, children can
explicit. The most important reason, as we will be assured of being born to both a man and a
show, is providing the best matrix for children. woman who will care for them as they mature.
People who want to marry but not to have chil- Marriage thus helps to define descent, or kin-
dren are still a minority, even today. ship, or who is kin to whom.
Before the current politicization of marriage,
historians and anthropologists had established Finally, consider the definition by evolutionary
firmly the universal focus of marriage on chil- psychologists Wilson and Daly (2004: 203):
dren. According to Turner and Frese (1987: 218):
'Every culture of the world recognizes some form A review of the cross-cultural diversity in mari-
of the institution of marriage... Marriage may be tal arrangements reveals certain common
viewed as existing primarily for the continuation themes: some degree of mutual obligation
of the family and society through procreation'. between husband and wife, a right of sexual
Similarly, according to Frayser (1985: 248), the: access (often but not necessarily exclusive), an
expectation that the relationship will persist
definition [of marriage] should be broad (although not necessarily for a lifetime), some
enough to facilitate the identification of a cooperative investment in offspring, and some

sort of recognition of the status of the couple's tion. Among the defining features of marriage,
children. The marital alliance is fundamentally though, has always been providing for the needs
a reproductive alliance. of children: taking responsibility for the conse-
quences of intercourse. The fact that some couples
And yet the justices hold that reproduction is now rely on reproductive technologies instead of
a secondary function, at best, of marriage. In natural intercourse, therefore, changes nothing
Halpern (2002), Justice LaForme acknowledged from our point of view. Besides, the word 'pro-
that 'procreation' had been a defining feature of creation' is inadequate to define marriage for an
marriage but classified it now as an anachronism. additional reason. Despite an implicit reference
'Casting aside all other arguments, the infringing to children as the results of sexual intercourse,
objective of the common law rule in this case - in this word still focuses attention on adult actors
as condensed a fashion as I can fairly state it instead of children. As we will show, the whole
when stripped of all its peripheral features - is debate over same-sex marriage has focused almost
one that distills down to the issue of procre- exclusively on the rights oi adults rather than on
ation... I do not agree that the evidence - such as those of children.
it is - supports the AGC's [Attorney General of In view of all this, we will discuss marriage as
Canada's] proposition that procreation is the an institution with not one but several functions:
essential objective of marriage'.ô complementing nature with culture; providing
According to Canadian legal precedents, adds children with at least one parent of each sex
Justice LaForme, neither the inability to consum- whenever possible; providing them with their
mate a marriage nor the refusal to offer inter- biological parents whenever possible; bringing
course within a marriage would be enough to end men and women together for both practical and
the marriage.21 He concludes with an accusation. symbolic purposes; and providing men with a
Using procreation as the defining feature of mar- stake in both family and society.
riage 'appears to be a mere pretext' that some peo-
ple use 'to rationalize discrimination against IS EXCLUDING GAY COUPLES FROM
lesbians and gays'.22 Halpern (2003) makes a simi- MARRIAGE DISCRIMINATORY
lar point, one that advocates of same-sex marriage ACCORDING TO S. 1 5 ( 1 )24 OF
often use: 'We fail to see how the encouragement CANADA'S CHARTER OF RIGHTS
of procreation and childrearing is a pressing and AND FREEDOMS?
substantial objective of maintaining marriage as According to s. 15(1), everyone 'is equal before
an exclusively heterosexual institution. Heterosex- and under the law and has the right to the equal
ual married couples will not stop having or raising protection and equal benefit of the law without
children because same-sex couples are permitted discrimination and, in particular, without dis-
to marry'.23 But that is simplistic. These couples crimination based on race, national or ethnic
will indeed continue to copulate, and copulation origin, colour, religion, sex, age or mental or
will continue to produce children. Whether cou- physical disability'. Based on their analysis of that
ples copulate responsibly and produce children in section, the justices conclude in Halpern (2002)
desirable circumstances, though, is another matter that the common-law definition of marriage dis-
entirely. At stake is not heterosexuality as defined criminated against gay people and was rationally
in that narrow sense but the heterosexual culture connected with the negative stereotyping of a
that every society has fostered through marriage. 'historically disadvantaged' group25 and even vio-
Consequently, the word 'procreation' is inade- lence. Justice LaForme puts it this way: 'Denial of
quate in this discussion. It refers specifically to equal marriage also serves to justify the legitimacy
heterosexual intercourse as the means to reproduc- of cultural heterosexism, thus perpetuating preju-

dice and violence againsr lesbians, gays, and would have been easy enough to make those ben-
bisexuals'.26 He comes close ro declaring that efits available immediately without redefining
anyone who disagrees with his point of view is, marriage. Second, doing so would have had no
by virtue of that alone, guilty of either prejudice effect whatsoever on those who insisted on noth-
or fostering prejudice. Halpern (2003) defines ing less than same-sex marriage.
discrimination in general as 'the violation of The most important alleged form of discrimi-
essential human dignity and freedom through the nation, by far, involved dignity. Canadian law
imposition of disadvantage, stereotyping, or denied gay couples dignity, supposedly, because it
political or social prejudice'.27 Yes, but how can did not permit them to marry. That allegation is
we recognize discrimination? technically false. Although very few societies have
The justices identify three signs of it: lack of allowed the people now known as 'gay' to marry
advantage; lack of freedom; and lack of dignity. others of the same sex, all have allowed them to
According to the justices, 'there is no doubt that marry people of the opposite sex. It could be
the common law definition of marriage creates a argued that being allowed to marry people of the
formal distinction berween opposite-sex couples opposite sex makes no difference to gay people,
and same-sex couples on the basis of their sexual because this technicality hardly amounts to the
orientation'.28 And we agree. Gay couples as such kind of freedom taken for granted by other peo-
were not allowed to marry. Nevertheless, we dis- pie.
agree that gay couples were 'denied access to this But marriage has never been about freedom.
institution simply on the basis of their sexual ori- On the contrary, marriage has always been prima-
entation'.29 Where is the evidence that denying rily about legal, social, and other duties. The
'equal marriage' actually justifies prejudice? Like underlying conflict is between those who believe
us, after all, many of those who oppose same-sex that personal freedom is the only thing that mat-
marriage do not oppose same-sex relationships. ters (making it a consideration that trumps all
According to a survey (COMPAS 2003), 30% of others) and those who believe that personal free-
Canadians wanted to maintain the current defi- dom is only one of several things that matter
nition of marriage; 37% wanted to maintain the (making it part of the negotiating process). Cana-
current definition of marriage but add an equiva- dian law did not allow people to marry others of
lent category for gay couples; and 3 1 % wanted their own sex, it is true, just as it did not and
to redefine marriage. In other words, 37% of the does not allow people to marry blood relatives or
population would be willing to accommodate more than one person. But it did allow gay peo-
gay people by giving them marriage in all but ple to marry, and we ought to say so. Gay people
name. would prefer to marry others of the same sex, to
In this section, we will discuss: (a) alleged be sure, but many have married across the sex
forms of discrimination; and (b) the alleged anal- line. (Given the nature of historical records, we
ogy between same-sex marriage and interracial know mainly about the most famous examples:
marriage. kings such as Edward II and celebrities such as
Oscar Wilde.) Nor does it mean that all of these
Alleged forms of discrimination marriages have been unhappy. After all, people
One form of alleged discrimination involved the marry for many reasons. These include not only
few financial and other benefits that remained sexual gratification but also children, companion-
unique to marriage. It is true that Canadian gay ship, partnership, and affection. People have
couples lacked immediate access to a few of often satisfied the need for sexual gratification
these.3*^ But this allegation was beside the point outside of marriage. For the elite of Western
and thus irrelevant for two reasons. First, it Europe during the late Middle Ages, in fact, this

practice - we are referring to courtly love - was terms of physical or even emotional desire. This
considered the ultimate ideal for nobles. brings us to the heart of this conflict.
Underlying all of this is the problematic In Halpern (2002), Justice LaForme says that
notion that some people are either innately or exclusion from marriage 'causes numerous egre-
ontologically gay and others straight. This is a rel- gious harms'. This form of discrimination 'threat-
atively new idea. Historically, those now called ens the well being and psychological integrity of
'gay' people were ordinary people who, for either all gays and lesbians, their children and society at
good or bad reasons, sometimes chose to 'sleep' large. Exclusion from civil marriage threatens the
with others of their own sex. For more on that, psychological integrity and sense of self-worth of
see Chauncey (1994). Even now, though, not all lesbians and gays'. Halpern (2003) defines human
people who prefer gay sex are incapable of enjoy- dignity by referring to Law v. Canada (1999).^'
ing straight sex. And many have done so. 'Human dignity means that an individual or
Strictly speaking, therefore, it is not true that group feels self-respect and self-worth.32 It is con-
the law had always excluded gay people from cerned with physical and psychological integrity
marriage. Their marital choices have been limited and empowerment'.33 But these justices ignore
to those of the opposite sex, true, but no one has the perspective on human rights in the Universal
an unlimited range of marital choices. The Declaration of Human Rights. Every society, by
grounds for limiting choice have varied a great definition, has been organized in terms of the
deal from one time and place to another by age, privileges that are either held by or withheld from
kinship, status, wealth, sex, and so on. It is surely individuals and classes. But not every society has
reasonable to question the social benefit of this or equated privileges with rights.
that limitation. But is it reasonable to deny the Consider the history of rights in connection
social benefit of any limitation at all? Not if you with freedom from discrimination. The ancient
want to argue, as Canadian advocates of same-sex Israelites acknowledged no such thing as de jure
marriage did, against polygamy. They seldom rights, although they did acknowledge the de
argued against polygamy directly. Ignoring cur- facto rights of rulers. The biblical prophets insist-
rent evidence of interest in some communities, ed that even rulers had no rights in relation to
they claimed instead that hardly anyone would Cod. The Israelites were preoccupied with sub-
want to marry more than one person in the first mission to God within a cosmic order, not rights
place, which supposedly reduced any discussion within the body politic. They took care of the
of polygamy to the level of a politically motivated poor and oppressed out of obedience to Cod's
distraction. demand for compassion, not because the poor
In the past, some gay people felt 'forced' into and oppressed had any right to economic or
marrying people of the opposite sex (sometimes political equality. The Creeks, on the other hand,
by hiding their sexual inclinations), but others really were preoccupied with the rights and
did so freely and often honestly. How was that responsibilities that distinguished citizens from
possible? We can think of at least two closely other members of the community. As for the
related reasons. Until very recently, people who Romans, they eventually granted citizenship even
were physically attracted to others of the same sex to non-Romans. The Magna Carta was yet
did not define themselves as gay, as people whose another step in the direction of rights as we know
primary identity was based on sexual proclivities; them today, although it applied only to those of
they found people of the opposite sex to meet nobles in relation to monarchs. So was the grad-
their many other needs. That is a fact of history, ual rise of parliamentary rule, which eventually
not a recommendation. Second, as we say, people replaced the divine right of kings.
have not always defined marriage primarily in At first, modern countries in the West defined

rights in negative terms. Citizens could expect at Both, after all, bore witness to the unified revela-
least a minimum of freedom from governmental tion of a single God. Even if the scholastics had
interference in their personal lives. Gradually, argued from their observation of nature that sex
though, these countries came to define rights in has not one but two purposes, as they could have,
positive terms as well. Citizens could expect the both procreation and companionship, they would
State to provide them with specific rights, specific still have rejected homosexuality because of what
legal entitlements. In some cases, suspicion of they understood as its scriptural prohibition.
governmental interference shortened the list of During the Enlightenment, natural law broke
entitlements. In other cases, such as 'welfare loose from its theological origin. John Locke and
states', Utopian ideologies expanded the list. But Thomas Jefferson, for instance, used it in a secular
every democratic country, falling somewhere and therefore much broader sense to establish the
between these two points on the constitutional moral foundation for legal rights. Each right
continuum, has found it politically expedient to meant liberty from tyranny by the State. 'We hold
move in the direction of providing voters with these truths to be self-evident.' Because of its reli-
more and more entitlements. gious origin, though, advocates of same-sex mar-
Now, consider the history of rights in connec- riage (and many others) have avoided even that
tion with dignity. Western scholars have proposed version of natural law as a basis for their dignity.
at least three ways of establishing dignity, Post-Enlightenment philosophers, especially
although most advocates of same-sex marriage political theorists and human-rights advocates,
avoid all three of them. Theologians have always have tried to establish human dignity more
established human dignity on the biblical basis of explicitly on empirical grounds. Writing the Dec-
revelation, arguing that everyone since Adam and laration of Human Rights, representatives of the
Eve is an 'imago dei' and therefore has innate dig- United Nations realized that they had to base
nity. Advocates of same-sex marriage have avoid- those rights on principles that would make sense
ed that perspective, with good reason, because not only to non-Christians or non-Jews but also
biblical traditions have historically rejected same- to non-Westerners. Research had made it clear
sex relationships, let alone same-sex marriage. that people everywhere value dignity. As a univer-
But medieval theologians such as Thomas sal and fundamental principle of human existence
Aquinas began to distinguish between two forms (unlike biblical revelation or natural law, from the
of revelation: scripture and natural law. The natu- UN's point of view), it is an adequate basis for
ral realm, they argued, like the supernatural one, human rights despite any cultural differences.
reveals divine order. Christians could not find sal- On the other hand, this idea is vague. Inter-
vation itself simply by observing nature, to be pretations do vary widely from one culture to
sure. They needed scripture for that. But they did another and even within some cultures. Sharma
not need scripture for other purposes. They (2006) provides a good catalogue of these inter-
sought evidence from the natural order to sup- pretations. He discusses no fewer than thirty-six
port many of the Church's moral, social, and arguments, in fact, which fall into nine clusters
political teachings. According to this teleological (historical, secular, economic, philosophical,
approach, people could know how to behave by related to modernity, religious, colonial, specific,
discerning the ultimate purpose of every basic and institutional). His aim is to see which, if any,
behavior. Whatever contributed to its fulfillment reveals Western biases. Baxi (2002) exposes differ-
was good; whatever hindered its fulfillment was ences and ambiguities in all notions of human
bad. But those who adopted this approach never rights. Although these notions purport to be
allowed information from the natural order to authoritative, he says, they are all among the
contradict information from the divine order. many 'normative orderings'. And all are incoher-

ent to some extent. Most people are not sure of in relation to others and to various groups
precisely what dignity is or of what it entails, (Articles 12 through 17); the spiritual, public,
which means that political activists can invoke it and political liberties (Articles 18-21); and the
effectively to establish almost any right for their economic, social, and cultural rights (Articles
own groups. 22 through 27). The Declaration is crowned
Eleanor Roosevelt noted that the authors of by a pediment (Articles 28-30) linking the
this UN Declaration had chosen the word 'digni- individual and society and placing the enu-
ty' to emphasize that every human being is wor- merated rights in the context of limits, duties,
thy of respect. When one delegate wanted to add and the social and political order in which
that 'all human beings are created in the image they are to be realized.
and likeness of God', another one defended 'dig-
nity' by arguing that the words 'God' and 'nature' The pediment of Glendon's temple consists of
were Western, and the 'Declaration was designed three articles. Among them is number 29:
to be universally applicable' (Glendon 2001:
146). The rhetoric of intrinsic dignity was general (1) Everyone has duties to the community in
enough for everyone. which alone the free and full development of
The Declaration refers to dignity in its pream- his personality is possible. (2) In the exercise of
ble: 'Whereas recognition of the inherent dignity his rights and freedoms, everyone shall be sub-
and of the equal and inalienable rights of all ject only to such limitations as are determined
members of the human family is the foundation by law solely for the purpose of securing due
of freedom, justice and peace in the world'. Glen- recognition and respect for the rights and free-
don (2001: 175) says that these words indicate 'a doms of others and of meeting the just
vision of ordered liberty, grounded in an under- requirements of morality, public order and the
standing of human beings as both individual and general welfare in a democratic society [190].
social. And ... it traces its legitimacy to funda-
mental characteristics of human nature: human All parts of the Declaration relate to each other.
dignity is said to be "inherent"; human beings are Limits, duties, and general welfare inform every
said to be "born" free and equal and "endowed" part of the text. Thus, article 16 relates both to
with "reason and conscience". The Declaration individual rights of women, men, and children
refers again to dignity: "All human beings are and to limits, duties, and society as a whole. It
born free and equal in dignity and rights. They refers to the important clause on the family,
are endowed with reason and conscience and which we have already discussed: 'Men and
should act towards one another in a spirit of women of full age ... have the right to marry and
brotherhood" ' (Article 1). to found a family ... The family is the natural
Glendon (2001:174) uses the analogy of a and fundamental group unit of society and is
Greek temple to analyze the Declaration's struc- entitled to protection by society and the state'.
Why, then, has Canada ignored the Declaration?
ture:
We suggest that three cultural strands converged.
The general principles of dignity, liberty, One strand, as we have noted, is the pervasive
equality, and brotherhood (proclaimed in Arti- rhetoric of popular psychology. By the 1980s, it
cles 1 and 2) were the portico's four founda- had become society's lingua franca. This was the
tion blocks. The main body of the Declaration legacy of countless therapeutic movements
consists of rights arranged in four columns: (which were the legacy, in turn, of newly fashion-
rights pertaining to individuals as such (Arti- able addictions), daytime talk shows, and the
cles 3 through 11); the rights of the individual emphasis of some feminists on feeling and subjec-

tivity over thinking and objectivity (v^fhich sup- can control society to such an extent that even
posedly gave women an advantage over men). the most perfunctory forms of inequality, includ-
Given the prevalence of this therapeutic mentali- ing those due to the free choices that everyone
ty, dignity has turned into 'self-esteem'. makes in daily life, are intolerable. The only stan-
The focus on self-esteem, moreover, has led to dard, they believe, is perfection. No wonder
the assumption that governments can actually advocates of same-sex marriage refuse with con-
confer it and therefore must do so. This new read- tempt any form of domestic union that is mar-
ing has turned the Declaration's assumption of riage in all but name. For them, only the word
reciprocal rights and duties at all levels - personal, 'marriage' will do.
communal, and societal — into the supremacy of These three cultural strands, taken together,
either individual or minority rights. Because elucidate both the transition from dignity that
minorities are segments of society, they are like relies on intrinsic qualities (personal or collective
individuals in political terms. Their political aims maturity) to dignity that relies on extrinsic mech-
in some cases, for instance, often have little or anisms (such as entitlements and government
nothing to do with the needs of society as a whole compensation) and the transition from either
or even those of other minorities, no matter how negative rights or minimal positive rights to max-
vulnerable these might be. In this case, advocates imal rights (which assume a Utopian view of soci-
of same-sex marriage believe that the rights of gay ety).
adults should trump those of children. Moreover, some minorities reject fundamental
Another strand is the pervasive (and closely principles of all liberal democracies by arguing
related) rhetoric of victimization. Since the that minority status is intolerable. Every liberal
1980s, this has supported not only identity poli- democracies must avoid the tyranny of a majori-
tics in general but also affirmative action and ty, to be sure, but also that of a minority coalition
political correctness in particular. The hope for (which therefore creates the tyranny of a new
political power is open to almost any group that majority). If there were something inherently
claims victim status. What these groups demand, undignified about being a minority, after all, then
whether it even makes sense or not, becomes less there could be no such thing as a democracy.
important politically than what they have suf- Finally, some minorities reject the natural fam-
fered. To feel righteous, or at least to avoid dis- ily as the fundamental unit of society. In this case,
approval, public officials are inclined (and a minority has argued that its rights are more
sometimes even obliged by law) to give these important than the welfare of society itself, which
groups what they demand: affirmative action, must regulate reproduction and protect children
same-sex marriage, and so on. Those who dis- until they mature to ensure its demographic con-
agree, of course, find themselves marginalized or tinuity.
silenced by accusations of'insensitivity'. Assuming a public consensus on dignity,
Yet another strand, increasingly effective since Halpern (2002) and Halpern (2003) assert that
the 1980s, is a new interpretation of equality. gay people ought to have the same dignity as
Liberal democracies have long promoted equality other people (which they could justify by refer-
of opportunity but also made special provisions ring to the Declaration), and that this requires
for women to ensure job security and job oppor- their eligibility for marriage (which they could
tunities for them. Some influential feminists (and wo? justify by referring to the Declaration). An
others), nonetheless, demand equality of result assertion, however, is not an argument. This is a
(which they glorify as 'substantive equality', not serious problem, because dignity can have very
merely 'formal equality'). Their mentality is little weight or even meaning without an argu-
Utopian. It relies on the assumption that the State ment that relies on some coherent philosophy.

The justices claim that governments can actu- else at the time, but lack of Jewish enculturation
ally confer self-worth or self-esteem on people or (and, sometimes, alienation from the Jewish com-
deny it to them. That would be news to all those munity). The notion of Jewish 'self-hatred' has
individuals or groups who have been ignored or been the topic of countless books and articles,
even persecuted by governments but nonetheless mainly from the United States and countries in
maintained their dignity. It would be hard to western Europe (which, unlike the countries of
think of any community that has been exposed to eastern Europe and elsewhere, had actually assim-
more relentless and even lethal hostility over the ilated their Jewish populations with varying
centuries than Jews. We have no evidence, how- degrees of success). Almost forty years ago, one
ever, to suggest that persecuted Jews ever thought author described some elite and highly assimilat-
less of themselves because of that. To base dignity ed American Jews as vaguely anti-Semitic (Birm-
on external circumstances is to deny people the ingham 1967). This did not come as a revelation
responsibility for realizing their own dignity. In to many Jews.3'*
other words, it is to undermine the task of striv-
ing for it. This is not to deny that governments The alleged analogy between same-
should uphold the Declaration or that individuals sex marriage and interracial marriage
have no moral responsibility to treat others with Among the most common strategies of those who
respect and compassion. But those are different supported same-sex marriage is to allege that laws
matters. And even a failure to treat others with preventing same-sex marriage are just like laws
respect and compassion does not necessarily that had once prevented interracial marriage.
deprive them of dignity (unless, of course, they According to Halpern (2003), 'if marriage were
have not managed, for whatever reasons, to devel- defined as 'a union between two white persons',
op it on their own). Otherwise, no Jews, for there would be a distinction between white per-
example, could have endured centuries of perse- sons and all other racial groups. In this respect,
cution or even emerged from the Nazi death an analogy can be made to the [American] anti-
camps with any dignity. And yet many did. They miscegenation laws that were declared unconsti-
started over again, after all that had occurred, and tutional in Loving v. Virginia,^^ because they
built new lives. distinguished on racial grounds'.3''
What about 'self-hating Jews'? These are This claim relies on a reductive analogy
almost always highly assimilated]ews, those who between racism (hatred of other races) and het-
lack Jewish education or affiliation and are there- erosexism (hatred of gay people). Almost all peo-
fore at the mercy of any public hostility toward ple today would agree that the State should allow
Jews. Because Jews were once strictly segregated interracial marriage, but some now argue^r the
from the larger population, this problem did not same reason that it should allow same-sex mar-
exist until very recently. In the late eighteenth riage. Both racism and heterosexism are forms of
century, a few elite Jews were allowed to live at prejudice; both are due to a combination of igno-
princely courts in western Europe. Most Jews, rance and malice; and both are evil. But the anal-
however, lived in much less exalted circum- ogy is seriously fiawed. It assumes that all those
stances. By the end of the nineteenth century, who oppose same-sex marriage, like all those who
Jews were migrating en masse to America. The oppose interracial marriage, are bigots. Some are,
process of assimilation was often accompanied by but others are not. Marriage between people of
loss of identity, which makes this analogy with different races was indeed banned in the Ameri-
gay people interesting here. What generated the can South because of racism. But that was one
'self-hating Jew' was not anti-Semitism per se, example of a larger phenomenon. We refer to
which was much lower in America than anywhere endogamy, marriage only with those from inside

the community. And endogamy is not always simply not a civil rights issue. It is not a struggle
caused by racism. Sometimes, for instance, it is for freedom. It is a struggle of already free people
caused by religion - that is, the urge to perpetu- for complete social acceptance'.
ate a religious culture by perpetuating a religious There is more to this than political correctness.
community. These societies ban inter-religious Apart from anything else, there is logic. 'Racial
marriage but usually accept marriage to converts difference', says Steele (2004b: 1), 'is an innocu-
regardless of their racial or ethnic origins. ous human difference that in no way redefines
In any case, endogamy is a culturally variable the heterosexual nature of marriage or affects its
norm. Many societies practise exogamy, marrying procreative function. Interracial marriage has no
only those from outside their communities. effect on the institution of marriage'. Steele
Endogamy is not a universal feature of marriage defends this with many of the arguments that we
and should not, therefore, be required by law in a have made in this article. From our point of view,
heterogeneous society. But heterosexuality really redefining marriage in this way moves marriage
has been a universal norm for marriage both his- farther away from its grounding in reproduction
torically and cross-culturally. The prejudice of and the intergenerational cycle. It effectively
some bigots notwithstanding, in short, there can makes marriage an institution more purely devot-
be a morally legitimate reason for not redefming ed to romantic love and adult fulfillment than to
marriage to include gay couples. the heavier and more selfless responsibilities of
Because advocates of same-sex marriage refer so having children.
often to an alleged analogy between the prohibi- Marital love and parental responsibilities are
tion of same-sex marriage and that of interracial not mutually exclusive, of course, but the gravity
marriage, it is worth noting here that many black of marriage as an institution comes from its
people - those once believed by racists to threaten demand that marital love encompass these res-
white purity through intermarriage - do not see ponsibilities. Some straight couples do not have
the legitimacy of this analogy. Consider Shelby children, to be sure, and some gay ones do. But
Steele, who challenged it in articles for the Wall to define marriage by exceptions to the norms of
Street Journal (2004a) and the Neiu Republic both sexual orientations, rather than by the
(2004b). Steele is infuriated, because 'other norms themselves, makes no sense. Steele argues
groups glibly invoke the civil rights movement cogently that marriage is actually an outgrowth of
and all its iconic imagery to justify their agendas heterosexuality itself. In other words, it is an
for social change. I will never forget, nor forgive, institution that follows directly from our some-
the feminist rallying cry of the early '70s: 'Woman times inconvenient but nonetheless obvious need
as nigger'. Here upper-middle-class white women, to perpetuate ourselves as communities and soci-
out of what must have been an impenetrable con- eties (Steele 2004a: 1).
viction in their own innocence, made an entire Marriage, adds Steele (2004b:2), evolved 'to
race into a metaphor for wretchedness in order to protect children and procreation from the vicissi-
steal its thunder. And now same-sex marriage is tudes of adult love', including the 'explosive natu-
everywhere being defmed as a civil rights issue'.37 ral force of male-female sex'. Family life suffered
Not all black people are impressed by the idea among black Americans during slavery, and so
that any gay person who cannot marry another did marriage during another century of segrega-
gay person is the equivalent of Rosa Parks (who, tion; even now, with massive support from the
on a bus in Birmingham, Alabama, refused to give government, the black family is in bad shape:
up her seat to a white person and thus set in
motion the civil rights movement). In any case, We blacks won our civil rights decades ago,
Steele (2004a) explained, 'same-sex marriage is but we still face stigma. And we, too, keep
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Redefining Page20society
marriage or deconstructing of 48
making the mistake of thinking that we can the objective of preserving the institution of
overcome stigmatization as inferiors by fight- marriage for male/female unions only is no
ing for civil rights. But it doesn't work. We will longer pressing and substantial and cannot jus-
have to become individuals, making the kind tify overriding the Applicants' s. 15 rights.
of life we want for ourselves without apology Thus, the first part of the Oakes test is not
or recrimination or conceit. And then one day, met. Nor is there any rational connection
the stigma will look absurd for its distance between the objective of the institution and
from reality. (Steele 2004a:3) the gender or sexual preferences of its mem-
bers. Therefore, the first part of the propor-
To sum up, we agree with advocates of same-sex tionality test in Oakes is not met either. In
marriage that the historic definition of marriage short, the extent of the inconsistency between
discriminated against Canadian gay couples by the requirements of the Charter and the com-
denying them some benefits (although we suggest mon law rules is considerable.''"
that they could have acquired these without
redefining marriage). We disagree that the historic Similarly, in Halpern (2003), the Attorney Gener-
definition discriminated in any significant sense al's task is to 'demonstrate that maintaining mar-
against gay couples by denying them dignity. riage as an exclusively heterosexual institution is
rationally connected to the objectives of mar-
BUT EVEN IF THE HISTORIC DEFINITION riage, which in our view is nor self-evident'.'"
OF MARRIAGE REALLY DID DISCRIMIN- In this section, we will refute: (a) the claim
ATE AGAINST GAY COUPLES, COULD IT that there is no rational connection between het-
HAVE BEEN JUSTIFIED ACCORDING TO erosexuality and the purpose of marriage; and (b)
s. 1 OF THE CHARTER? the claim that there is no rational connection bet-
Is there a rational connection, in other words, ween reproduction and the purpose of marriage.
between the purpose of marriage and its restric-
tion to straight couples??^ Although Justice Blair The claim that there is no rational
wants to argue for a parliamentary rather than a connection between heterosexuality
judicial decision, he refers to s. 1 of the Charter, and the purpose of marriage
'which guarantees the rights and freedoms set out The justices deny any rational connection bet-
in it subject only to such reasonable limits pre- ween the purpose of marriage and heterosexuality.
scribed by law as can be demonstrably justified in According to them, the Attorney General 'has not
a free and democratic society'. Reasonable limits demonstrated that companionship is rationally
are tested by the two-part 'Oakes test'. The first connected to the exclusion of same-sex couples.
part asks whether the law's aim is pressing and Gay men and lesbians are as capable of providing
substantial; the second part, known as the pro- companionship to their same-sex partners'.''2
portionality test (which in turn has several parts) True. And if companionship were the only impor-
asks whether the way of achieving that aim is rea- tant function of marriage, we would agree that
sonable and demonstrably justifiable.?' Applying the State should encourage gay couples to marry
the Oakes test, the justices conclude that the: - or, in view of the fact that it has no obvious
business at all in regulating emotional relation-
violation in question is the underinclusiveness ships, that the State should not encourage anyone
of the common law definition of marriage. It to marry.''3 Companionship is a variation on love
excludes same-sex unions. Once it is accepted and commitment. We have already discussed
that heterosexual procreation is not the deter- marriage in connection with love and commit-
mining feature of marriage in modern society. ment, so we will not repeat ourselves here.
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The claim that there is no rational the purpose of marriage more transparent than it
connection between reproduction is, but that would have replaced old problems
and the purpose of marriage with new ones. It would have been much harder,
The justices deny any rational connection for instance, to establish biological paternity.
between the purpose of marriage and reproduc- Couples who do not have children maintain
tion. It is true that, toward the very end of the ideal, albeit as exceptions, merely by being
Halpern (2003),'*'' the justices finally acknowl- married and therefore supporting the institution
edge that one function of marriage has been to intended for couples who do have children. They
ensure the production and welfare of children. do this symbolically; some do so practically as
But they immediately deny that even this is well, however, by giving resources to their extend-
'rationally connected' with the exclusively hetero- ed families. Even childless marriages between
sexual definition of marriage. Adversaries of men and women contribute directly and signifi-
same-sex marriage, they say, have 'not shown that cantly, therefore, to the achievement of a funda-
the opposite-sex requirement in marriage is mental requirement of every society: renewing
rationally connected to the encouragement of itself in an orderly way. Childless marriages
procreation and childrearing. The law is both between two men or two women would not, on
overinclusive and underinclusive. The ability to the other hand, because they would undermine
'naturally' procreate and the willingness to raise the distinctive and necessary symbolism of bring-
children are not prerequisites of marriage for ing men and women together. Many people
opposite-sex couples. Indeed, many opposite-sex today, whether gay or straight, find it convenient
couples that marry are unable to have children or to ignore all this as if marriage had no communal
choose not to do so. Simultaneously, the law is dimension and were not, therefore, an institu-
underinclusive, because it excludes same-sex cou- tion.
ples that have and raise children'.^5 That criticism
Critics might well ask us if redefining marriage
is true but also trite, because marriage is a norm.
is a serious threat to its symbolism. We think that
And all norms are by definition both overinclusive
it is. To redefine it as a union between two indi-
(allowing some exceptions) and underinclusive
viduals - not between a man and a woman - is to
(not allowing all exceptions). Otherwise, there
exclude the distinctive needs of children, men,
would be no need for norms.
women, and society. Communal and public sup-
Not all married couples do have children, of port for heterosexual culture, we argue, is the nec-
course, because of infertility or old age.'"' Some essary counterpart of heterosexual copulation.
societies allow infertile couples to separate after Same-sex marriage, therefore, is an experiment.
annulments or divorces. Others have allowed And every experiment involves risk. Take away the
polygyny or surrogacy in cases of female infertili- public culture of heterosexuality, as we will discuss
ty. Still others have allowed polyandry, levirate in due course, and you pose a risk to children and
marriage, or some other mechanism''^ in cases of to the demographic continuity of society.
male infertility. Some married couples are now childless by
Judging from the historical and cross-cultural design rather than by default. As exceptions,
evidence, however, one thing is clear. Most soci- though, even they do not seriously undermine
eties have found it prudent to marry people before the symbolism of marriage. But incorporating
they have children or even know that they can them into a new norm by redefining marriage
have children. This gives them time to think care- would do precisely that, because it would rein-
fully about the sacrifices that having children will force the notion that formalizing 'love and com-
inevitably entail. These societies could have mar- mitment' is the primary function of marriage. It
ried couples after the arrival of children, making is worth remembering that these couples some-

Redefining Page22 ofsociety
marriage or deconstructing 48
times change their minds or have 'accidents'. For (which includes not only elite culture and popu-
that reason (along with the need for demographic lar culture but all aspects of human existence
survival), every society must assume that most aside from those that are determined by nature).
couples will have children. Marriage has always Although particular cultures are not genetically
been based primarily on this and other commu- encoded, the ability and need to create culture
nal needs in addition to individual ones, includ- really is genetically encoded. Nature itself equips
ing those of children. and even drives us, paradoxically, to be cultural
Some gay couples, on the other hand, do have beings. This has made us more flexible than other
children. The justices elaborate on this theme animals, which rely entirely (or almost entirely in
many times, always in connection with the psy- the cases of some other primate species) on
chological needs of adults rather than those of nature. And this, in turn, has greatly facilitated
children. Merely 'favouring one form of relation- our adaptation to new circumstances or environ-
ship over another', for instance, 'suggests that ments and thus fostered human survival. In
uniting two persons of the same sex is of lesser short, culture is not a thin veneer that we apply
to something more primitive and basic. On the
importance '•48
contrary, it is a defining and therefore fundamen-
[Any] law that restricts marriage to opposite- tal feature of human existence; if it were some-
sex couples, on the basis that a fundamental how removed, the result would not be a
purpose of marriage is the raising of children, functioning organism, whether human or non-
suggests that same-sex couples are not equally human.
capable of childrearing... In the absence of The reproductive cycle includes not only
cogent evidence, it is our view that the objec- bringing children into the world but also rearing
tive is based on a stereotypical assumption that them to maturity. This process is not reducible to
is not acceptable.'*' copulation. To use anthropological terminology,
human existence is based on a collaboration
But there is indeed cogent evidence: phenomeno- between nature and culture; the latter is not an
logical evidence from the intergenerational cycle epiphenomenon. Apart fi-om any other handicap
and comparative evidence from historical and would be its inability to reproduce successfully.
cross-cultural studies.5° Our point in citing this Why? Because copulation, governed primarily by
evidence here is not that gay people per se are nature, is not synonymous with reproduction.5'
incapable of loving their children (or, for that The latter, governed primarily by culture,
matter, that straight people per se are capable of includes a wide range of complex heterosexual
doing so); they clearly can. Our point here is behaviors that family life requires within a larger
simply to demonstrate the rational connection society.52 These inform the norms, or ideals, of
between the heterosexual exclusivity of marriage every society.
and its purpose. We do so by making four basic
arguments. Argument 2: Every society or community has a
compelling interest in children and their needs.
Argument 1: Culture complements nature. This The justices refer repeatedly to the conflicting
is obvious but bears repeating here, because it not rights of adult gay people and adult straight peo-
only defines us as humans in general but also has ple. Nowhere do they acknowledge the rights of
major implications for the human reproductive children. And nowhere, by implication, do they
cycle in particular. Much of what is accomplished acknowledge the rights of society (as distinct
in animals by nature (genes, say, or instincts) fi-om this or that collection of individuals). Con-
must be accomplished in humans by culture sider one of their many solemn declarations in

Case3:09-cv-02292-JW
Katherine K Young and Paul Nathanson Document302-1 Filed12/11/09 Page23 of 48
Halpern (2003) about the importance of marriage But what if parents bring in relatives or friends of
is as follows: 'The societal significance of mar- the opposite sex? These people are surrogates;
riage, and the corresponding benefits that are they do not live with the children on an enduring
available only to married persons, cannot be over- basis and do not replace parents. The need for
looked. Indeed, all parties are in agreement that fathers is particularly acute for boys, moreover.
marriage is an important and fiandamental insti- Like girls, they must separate from their mothers.
tution in Canadian society. It is for that reason Unlike girls, however, they must also switch the
that the claimants wish to have access to the insti- focus of their identity from one sex to the other.
tution'. 53 Societies have helped boys switch their identities
But children need at least one parent of each from women to men in various ways. Many take
sex. (We say 'at least one', because an extended boys from the primary care of their mothers at
family - with aunts, uncles, cousins, and grand- specific ages and initiate them into men's groups
parents - is probably much closer to the ideal (sometimes with their own secret cultures) or into
family than to an isolated nuclear one.) Why this other groups that are closed to women.
need? Because the sexes are not quite inter- This does not support the reductive and cyni-
changeable. Though much more similar than dis- cal notion, associated with Freud, that boys must
similar, each is distinctive. No matter how learn to scorn their mothers and therefore all
inconvenient it might be politically, the fact is women in order to become men. We do not have
that human beings, like all other animals, are to look down on all 'others'. In fact, we can
embodied beings. And this means that our bodies admire them. For more on this topic, see Curian
(except for those of the rare hermaphrodites) are (1999); Cilmore (1990:22), using Erik Erikson,
either male or female. We are discussing sex here, Robert StoUer, D. W. Winnicott, Nancy Chodor-
not gender. The latter relies on cultural variables, ow, and others; Raphael (1988); Hoff Sommers
but the former relies on genetic givens and is (2000); Leiris (1963) and Horrocks (1994: 7 0 -
therefore not merely a 'social construction'.54 77). Some feminists have their own reasons to
Some people prefer to ignore this obvious distinc- emphasize the need for boys to separate from
tion, but it remains true all the same. It is reason- their mothers. Keller (1986) argues that the sepa-
able to conclude that those who shape public ration of boys from their mothers turns them
policy should take seriously this fundamental fact into men who are 'impermeable' to others, or
of the human condition. worse, and thus inferior to women.
Feminists have been arguing for decades that Moreover, children need their biological par-
no man should or even can teach any woman ents. Many adopted children make strenuous
about the experience of being female (and there- efforts to find the identity of their biological par-
fore about being feminine). We could say the ents and thus something important about their
same thing, however, from the other point of own identities. We now know that this biological
view: that no woman should or even can teach link is deeply rooted. Evolutionists theorize that
any man about the experience of being male (and 'when we care for and enhance the life of those
therefore about being masculine). Both claims are carrying our genes, we contribute to our own
sometimes exaggerated, though, because each sex 'inclusive fitness', i.e., the continuation of our
can indeed teach the other at least some things own genes down through the generations'
merely by virtue of being observers, outsiders. (Browning 2003:107). Because it is easier to work
Boys do need to know how women perceive men, with nature than against it, almost all societies
for instance, and what they expect from men. (except some matrilineal and tribal ones, which
Similarly, girls do need to know how men per- ours is not) have given priority to biological par-
ceive women and what they expect from women. ents and encouraged unrelated parents to step in

Redefining Page24 ofsociety
marriage or deconstructing 48
only as needed in unusual cases. But our ances- foundly fractured one and, given the rhetoric of
tors knew nothing of DNA testing, so how did some feminists, a profoundly polarized one as
they identify these biological fathers? Not all of well.55 Elsewhere (Nathanson & Young 2001,
the men who once believed that they were fathers 2006), we refer specifically to ideological femi-
actually were fathers, true, but they were excep- nism (as distinct from egalitarian feminism), a
tions. Most men had good reasons for believing profoundly dualistic worldview that directly and
that they were the fathers of specific children. indirectly promotes the separation of women
Almost all societies allow sexual intercourse from men.
according to rules that make biological parenting At the heart of human existence is a natural
the most likely outcome (Browning 2003: 107). asymmetry between the sexes. This is lamentable
First is the universal norm of marriage between and inconvenient, to be sure, but it is true all the
men and women. Second is the nearly universal same. This might be lamentable and certainly
vow of commitment. Women vow sexual fidelity inconvenient, but it is true all the same. Because
to their husbands, so that the latter can be confi- women produce a limited number of eggs, they
dent that they are the fathers of any children, and choose their mates with long-term goals in mind;
men vow to support and protect their wives and even now, most women invest heavily in gesta-
children (and sexual fidelity in monogamous cul- tion, childbirth (often painful and historically
tures). Third is the nearly universal rule that men dangerous), lactation, and the care of infants and
and women should marry before having children young children. Because men produce countless
(and therefore after taking those vows). Marriage sperm, by contrast, they can easily impregnate
is a public event, therefore, announcing that cou- many women, sire many children, and keep mov-
ples are ready to have children. ing on to other women; they need not, in purely
According to Quale (1988: 25) 'marriage sys- biological terms, invest much in caring for any of
tems tend to be most flexible of all in the affluent these women and children. But every society has
modern urban industrial-commercial societies... strongly encouraged men to do precisely that and
But even there, biological concerns continue to uses cultural mechanisms to ensure that they do.
play their age-old role'. A few societies have pre- Women need the support of men, according to
ferred social parenting, not biological parenting. evolutionary psychologists, during both pregnan-
The Israeli kibbutz is one obvious example. Even cy and the years before their children mature.
on the kibbutz, though, children know their bio- Men are more likely to provide it, moreover, if
logical parents and spend some time every day they know that these children are their own. Hus-
with them. By and large, society encourages bands can usually assume that their wives are
social parenting only in connection with orphans, loyal, because cultural rules ensure that no other
remarriage, and infertility (although there are a men have access to them.56 Then too, men
few other exceptions, such as social fatherhood in receive not only sexual pleasure but also care from
some matrilineal societies). long-term partnerships with women. Most men
learn that this is ultimately more satisfying than
Argument 3: Every society must bring men and promiscuity. They do so not only through cul-
women together for the common good. One tural indoctrination but also through personal
obvious aspect of the common good is demo- experience. The experience of caring for their
graphic continuity - or, to put it more bluntly, children, 'kin altruism', extends to their mates in
collective survival. A less obvious but equally a kind of reciprocal altruism (Browning 2003:
important aspect is social stability. A society in 110-111). Besides, society can exact a heavy
which men and women were autonomous com- price on those men who still fail to learn it and
munities, after all, would by definition be a pro- act accordingly.

Even though we argue here that straight cou- merely pawns in the larger game of society. All
ples are more important to society than gay ones, people need to be needed in one way or another.
because most of them produce children, we do Otherwise, no one could find meaning or pur-
not argue that straight individuals are more pose in life. Otherwise, in fact, no one could
important to society than gay ones. It would be form a healthy identity. We have defined that
both impractical and condescending to list even elsewhere (Nathanson & Young 2001) in terms
the better-known gay people who have enriched oi at least one distinctive, necessary, and publicly
society. In any case, our point is that gay men valued contribution to society.
who do not have children (and do not marry) are Male biology alone might leave men, like the
by no means cut ofif by that very fact from having males of some other species, as loners with litde
healthy identities: what the Court refers to as or no investment in the group. But masculine
'dignity' and 'self-esteem'. And any society that culture, no matter how much it might vary from
insists on conformity without exception to one one time and place to another, ensures that men
model, such as marriage, would greatly impover- do indeed feel connected with society. This gives
ish itself as a result. every man a personal stake not only in the wel-
For couples to do their job properly, as par- fare of society but also in the future of society.
ents, they must be able to rely on a culture that (Any adult who does not invest in society is by
openly and unequivocally supports the project of definition either reclusive or antisocial - in the
perpetuating society and addressing the special sense of hostility toward society, not merely lack
needs of straight couples, who will remain the of sociability.) For many men, children and their
majority of reproductive couples. We are referring descendants collectively represent this investment
to the symbols and ideals that have always been in the future, one that marriage makes possible.
promoted by means of a massive cultural effort, To have a stake in the future is by definition to
one that now involves public institutions as dif- have a stake in future generations and therefore
ferent as schools and movies. Now that same-sex in communal survival. And for most men, that,
marriage is legal in Canada and therefore defined in turn, means having children (although, as we
as different in no significant way from any other will discuss in a moment, other men can still
form of marriage, it will inevitably become politi- contribute to future generations in different
cally incorrect, and possibly illegal under hate leg- ways). Ethological theories rely on the genes and
islation, to say in public that society relies more their reproduction. From that point of view, the
on straight couples than it does on gay couples. relationships that men have with their children
And it does. This is neither prejudice nor specula- would be irrelevant. Our position, however, relies
tion. It is a self-evident biological and demo- on the fact that men are not merely carriers of
graphic fact (even if a few gay couples do have genes but people. From this point of view, their
children and even if technology makes it easier relationships do indeed matter. And marriage is
for them to do so). At best, redefining marriage the institution that establishes and supports
makes marriage between men and women noth- those relationships.
ing more than one 'lifestyle choice' among many
supposedly equal ones. Any attempt to promote WHAT RISKS ARE INVOLVED IN
it for the good of society as a whole, including SEVERING THE HISTORIC CONNECTION
demographic continuity, will almost inevitably be BETWEEN THE PURPOSE OF MARRIAGE
denounced as 'discrimination' against gay people. AND ITS EXCLUSIVELY HETEROSEXUAL
DEFINITION?
Argument 4: Men need to have a stake In the We are not fortune tellers. But in view of the fact
family and society. Like women, men are not that advocates of same-sex marriage often accuse

US of 'speculation',57 we note that they are liable to to society as a whole when used as a collective
the same critique. One of their major claims, after research subject.
all, is that nothing will change for straight people This is by no means the first time that Canada
if a few gay people are allowed to marry each should have taken these considerations seriously
other. But as we have already observed, heterosex- but failed to do so. The justices actually refer to a
uality is a matter of cultural effort, not merely nat- parallel from forty years ago: liberalizing divorce
ural inclination, 'The Couples are not seeking to laws to lighten the burden on a few unhappy
abolish the institution of marriage; they are seek- couples. At the time, who could have known that
ing access to it'.58 Elsewhere, the court claims that this would lead to the 'divorce culture' (White-
straight 'married couples will not stop having or head 1997) of our time? No one could have
raising children because same-sex couples are per- known, of course, but many could have suspect-
mitted to marry'.59 But that is by no means as self- ed. They could have taken the risk seriously,
evident as it appears at first glance. Nor are the therefore, and urged caution. The justices dismiss
implications. this parallel. 'We reject the AGC's submission as
Any debate about a social experiment is a speculative'.60 No wonder they make not the
debate about applied ethics. In practice, wrote slightest effort to assess any of the possible risks
Somerville (2000: 293-294), applied ethics: involved in redefining marriage or to discuss the
historical and cross-cultural evidence that was
flows back and forth between facts, including presented by the attorney general. Their criterion
scientific facts, ethics and law... This is not for risk was absolute certainty, even though risk is
accidental: Good ethics depends on good facts, by definition is about possibility.
and good law depends on good ethics. Risk is In this section, we will discuss the risks for: (a)
often among the most important of the ethi- children; (b) boys and men; (c) women; (d) single
cally relevant facts... Even when we turn just people; (e) society as a whole; and (f) democracy.
to physical risks, there can be uncertainty,
because the scientists cannot agree on the mag- The risks for children
nitude and prevalence of a given risk. This These should, but obviously do not, concern
means that we cannot insist on certainty [Our everyone. Our argument against same-sex mar-
emphasis]. What we can insist on is honesty, riage and gay parenting is not based on the spuri-
good faith (especially an absence of conflict of ous claim that gay people are inadequate as
interest) and non-negligence in risk assess- parents but on the obvious fact that every child
ment... It matters, as well, whether a risk is needs at least one parent of each sex (which is
likely to be reversible should it occur. We have why we oppose, in addition, single parenting by
the most serious obligations not to engender choice). As we say, advocates of same-sex mar-
irreversible harms. riage are interested primarily or even only in the
interests of gay adults. They all but ignore chil-
According to Somerville (2000: 292), physicians dren per se.6' Every discussion is about the rights
and scientists have 'an obligation to inform the of adults, in other words, not the needs (let alone
public of the risks of their research or those of its the rights) of children. Here is an example: 'The
potential applications and uses'. But so do evidence', wrote Justice Blair, 'is clear: same-sex
lawyers and politicians, we would add, especially couples can and do live in long-term, caring, lov-
when they formally represent the government ing and conjugal relationships - including those
and advocate historically unprecedented experi- involving the rearing of children (and, in a mod-
ments. The principle of informed consent applies ern context, even the birth of children)'.''^ Even
to research subjects, moreover, so it surely applies though children are self-evidently the most vul-

nerable members of society, much more vulnera- twice as likely as other boys to end up in jail by
ble even than gay people, the justices say almost their early thirties (see Harper & McLanahan
nothing about their interests; instead, they reduce 1998). The same is true for teenagers — the inci-
children to the status of bystanders in an adult dence of delinquency among adolescent males is
disagreement over marriage. Similarly, advocates greater in families without fathers (see Coughlin
of same-sex marriage often try to argue that chil- & Vuchinich 1998; Sampson & Laub 1994;
dren are better off with good gay parents than Sampson 1987; Matsueda & Heimer 1987;
with bad straight ones, even though comparing Thomas & Farrell 1996). A family with biological
the best of one thing with the worst of another is parents is statistically less risky for children than
illegitimate both intellectually and morally. one with social parents. Children not living with
In any case, they argue that same-sex marriage both of their married parents - that is, both their
and parenting will symbolically strengthen the mothers and their fathers — are at greater risk of
bonds between all parents and children. On clos- being physically or emotionally damaged (see
er examination, though, this is very unlikely. Creighton 1985; Daly & Wilson 1985, 1994,
Lerner and Nagai (2001) evaluate 49 empirical 1996a, 1996b; Siegel et al. 1996; Margolin 1992;
studies on same-sex parenting, focusing on how Levin Coley & Chase-Lansdale 1999).
each study formulates its hypothesis, designs its Advocates of both same-sex parenting and sin-
project, controls for extraneous matters, measures gle parenting, whether gay or straight, either
bias and reliability, composes its sample, compiles ignore these facts or trivialize them. This surely
statistics, and deals with the problem of false neg- says something about concern for children in our
atives. They find the following major problems: time. Parents in our society are still highly moti-
unclear hypothesis, inadequately designed proj- vated when it comes to the needs of their own
ects, self-constructed, unreliable, and therefore children, to be sure, which entails emotional and
invalid measurements, small and non-random personal forms of involvement. But they are not
samples, missing or inadequate statistical analysis. all so highly motivated when it comes to the
At least one 'fatal research fiaw' invalidates each needs of children collectively, which requires
of these 49 studies. We obviously do not yet have other kinds of involvement: intellectual, moral,
enough social-science studies to make empirical philosophical, and so on.
claims about child outcomes in same-sex mar-
riages. And in any case, we would have to study The risks for boys
the lives of these children for decades along with Very few people today would deny that every
their histories as parents before we could make child needs a mother, and many have come to
any legitimate claims about them. believe that two mothers are better than one. But
On the opposite-sex front, though, some fac- many people do deny that every child needs a
tors are already clear. A family with two parents is father as well. The message from both political
generally better for children than a family with rhetoric and popular culture, by and large, is that
only one (see, for example, Hao 1996; Fursten- fathers are practical or sentimental luxuries at
berg & Cherlin 1991; Shapiro & Lambert 1999). best (as assistant mothers) but dangerous liabili-
A family with both a mother and a father is gener- ties at worst (as potential molesters). In this envi-
ally better for children — even in a society that has ronment, it is no wonder that so many people see
already minimized its support for marriage - than nothing wrong with a family that includes no
one with only a mother or only a father (see man (Nathanson & Young 2001).
Blankenhorn 1995). Even when we account for This problem is even more complicated than
factors such as race and intelligence, it remains that, however, when you consider the historical
true that boys without fathers are approximately and cross-cultural evidence. Masculine identity

Redefining marriage or Page28 of society
deconstructing 48
has always and everywhere been defined primari- Canadians would have to open up this can of
ly in connection with three functions of men: worms all over again to legalize commercial sur-
provider, protector, and progenitor (Gilmore rogacy. Even so, not many men, gay or straight,
1990). But women have moved into the public will be able to afford it.
sphere and become providers. And the State Browning (2003) warned that we should not
takes over when single women need help. More- take the involvement of men in family life for
over, women have demanded that the State take granted. If men have no strong ties with their
over From individual men as protectors. That families, they are unlikely to invest much toward
leaves progenitor, fatherhood, as the only possi- the welfare of the wives and children. If men have
ble source of healthy masculine identity. As we no biological ties with future generations, more-
say, this function implies having a stake in the over, they are unlikely to invest in the future of
future of society. We suggest that massive social society. The corollary, of course, is to live for
problems, more widespread than the ones we themselves and for the moment. That is the ori-
already have, are likely to emerge whenever and entation of hedonism. More about that in due
wherever boys or young men are unable to feel
course.
deeply involved in either the family or society.
The suicide rate for young men, but not young The risks for women
women, is soaring. So is the high-school drop- These are clear enough, but feminist activists sel-
out rate.''3 Over the past few decades, moreover, dom mention them. For some, this is probably
we have seen a resurgence of machismo. Consid- due to their political alliance with gay activists.
er the spectacular rise of rap music and the hip- For some, this is likely to be because of their
hop subculture. To many boys, it seems clear that alliance with gay activists. The big winners of the
even a negative identity is better than no identity reproduction sweepstakes will be women who
at all. This alone should give us pause in contem- want little or nothing to do with men. Women,
plating the future. whether gay or straight, now have greater access
We now turn from masculine identity to a to reproduction than men for at least three rea-
closely related topic: access to reproduction for sons: their natural ability to gestate, the preva-
men. The justices say that 'same-sex couples can lence of sperm banks, and the widespread belief
choose to have children by other means, such as that they have some 'right' to children. For the
adoption, surrogacy and donor insemination'."^^ past several decades, feminists have campaigned
Not many children are available for adoption in for the reproductive autonomy of women (but
some places, and not all countries would allow not men).
their own children to be adopted by single or gay Western societies will almost certainly have to
people. As for surrogacy, Canada has endorsed a cope with one problem that other societies have
'cautious' policy under the Assisted Human prevented (albeit with varying degrees of success):
Reproduction Act of 2004. So far, only some sec- a social fabric that is unraveling to the extent of
tions are in force. Surrogacy is legal unless pay- generating separate communities of men and
ment is involved. So far, only some sections are in women. In a documentary film called Women
force. Surrogacy is legal unless payment is and Men Unglued, Cilday (2003) interviewed sin-
involved. This means that not many men, gay or gle people in their twenties and thirties (more
straight, find it accessible. And yet gay men will women than men) about their attitudes toward
surely demand the 'right' to reproduction by any marriage. Almost all of these people are gloomy
means and thus equality with their female coun- about their prospects, to say the least. Not only
terparts. Many years after a highly contentious do they not expect to end up married, they do
royal commission on reproductive technologies. not expect even to end up in durable 'relation-

ships'. As sociologist Whitehead (1997) points 80% have no intention of complicating their lives
out in one of her books, the stark fact is that either by marrying men — or, for the same reason,
many young men and women no longer believe presumably - even by having 'relationships' with
that they need each other for anything but tran- men. Fitterman (2004) agrees with the women
sient physical or emotional pleasure (although surveyed (finding them practical rather than cyni-
most of them still want enduring marriages). We cal). She refers to a study reported by Reuters
can no longer assume that almost everyone will (2004 August 7), commissioned by Forsa and
marry and have children or even marry and not published in Der Stern. Unlike the other single
have children. Many of the others, both the men women that we have been discussing, these single
and the women in this film, acknowledge their women do not even want men in their lives
despair. One actually expresses deep regret that (whom they stereotype, cynically, as burdens).
she will probably never have what her parents Instead, they want freedom to come and go as
have had: a marriage that has matured over 40 they please. Many women who want children but
years. have not found men turn even now to single
Some of the women in this film say that they motherhood by choice.
would like to have children but 'not yet'. Several
want children soon but worry about their biolog- The risks for single people
ical clocks; they have not yet found men who are 'Exclusion', according to the court 'perpetuates
both attractive (whether physically, financially, or the view that same-sex relationships are less wor-
in some other way) and willing to 'commit'. thy of recognition than opposite-sex relation-
Other women want children but not husbands; ships. In doing so, it offends the dignity of
they will choose single motherhood. And noth- persons in same-sex relationships'.''^ If so, then
ing, certainly not social disapproval or lack of gay people will be foisting the problem of inade-
support from family and friends, stands in the quate self-esteem onto another group: single peo-
way of those who choose this 'alternative ple. Some communities have offered prestige to
lifestyle'. Still other women do not want children single people in return for special services to soci-
at all. ety instead of family. The most obvious examples
This documentary is not a social-scientific have been priests, monks, nuns, and so on. Other
study; Gilday (2003) chose those interviewed communities, including those of both Protestants
because they could articulate their thoughts and and Jews, have denied respect to those who refuse
feelings with convincing candor, not because they to marry.
represent a random sample of the larger popula- Everyone is aware that single women were
tion. In fact, they represent primarily the urban once stereotyped as 'spinsters' or 'old maids'. Not
and white middle class."55 Even so, anyone inter- everyone is aware that single men were once
ested in what young people actually think about treated with condescension, suspicion, and even
or expect from marriage in our time should take contempt in our society.'^7 Not only in the private
this film seriously. Gilday's subjects echo what realm of family life but also in the public realm of
Swedes have been saying for many years, and not jobs. Unmarried men who hoped to become
without an impact on Swedish society. Popenoe managers, for instance, once knew that they 'need
(1988) noticed this trend during the 1980s in not apply'. To this day, single people often feel
Sweden and has raised questions about the prob- unwelcome in churches during 'family services' or
lems that it might cause here. even at 'family restaurants'. If marriage were really
An even more disturbing point of view, how- so vital to self-esteem, in short, anyone who is
ever, has become prevalent in Germany. Accord- either unable or unwilling to marry would be
ing to one study of single women in that country. more isolated than others and, to follow the argu-

Redefining marriage orPage30 of society
deconstructing 48
ment in favor of same-sex marriage, more likely ture, which has been its raison d'etre, illegal.
to lack self-esteem than others. We would do well Local minority communities are very aware of
to accept a simple and necessary fact of life in any demography. And so will society as a whole in the
democracy: the legitimate needs of a majority. years to come, when millions of retired people
Once we acknowledge and support the majority will have to rely on a diminishing number of
for its contributions - reproduction in this case - young people to pay for their pensions and med-
we can easily support minorities for their contri- ical care.
butions. Eskridge and Sullivan (cited in Kurtz 2004:26)
claim that marriage has become stronger in Scan-
The risks for society dinavian countries since same-sex marriage was
We will feel the effects of this 'ungluing' collec- legalized there, de facto, in the form of registered
tively, not only as individuals. At the heart of this partnerships (Denmark in 1989, Norway in
phenomenon, like marriage itself, is not merely 1993, and Sweden in 1994). They relied on an
the pleasure or lack of it that individuals will unpublished study by Darren Spedale, which
experience, after all, but the demographic foun- claimed that 'in the six years following the estab-
dation or lack of it that society will experience. lishment of registered partnerships in Denmark
Advocates of same-sex marriage oft:en accuse their (1990-1996), heterosexual marriage rates
adversaries of 'trotting out the children' oppor- climbed by 10%, while heterosexual divorce rates
tunistically (even though these advocates do the declined by 12%. But Kurtz presents evidence
very same thing when it suits their own purpos- from those countries to show that same-sex mar-
es). Underlying this accusation is the belief that riage has indeed begun the process of undermin-
having children or not having children is a matter ing marriage. He suggests other explanations for
of no importance to society (as distinct from indi- the increase in marriage rates from 1990 to 1996.
vidual parents). Actually, though, it is. Not in In any case, he says, the statistics do not indicate
China or India, at least not in the near future, a long-term trend.
but in Western countries. Figures from 2001, for instance, show that the
Amost all Western countries are already failing rate was actually declining again in Sweden and
to reproduce themselves. And they are no longer Denmark (we lack comparable reports on the rate
the only ones in demographic decline. Mainly in Norway.) The statistics on marriage and divorce
sub-Saharan African countries and Islamic coun- are skewed, moreover, because the pool of married
tries are still growing. But they will not be for people has been shrinking dramatically; a 25%
very long, because the education of women corre- increase in the number of cohabiting couples has
lates with demographic decline. The population affected the number of divorces. '[W]ith fewer
of almost every country will begin to decline by parents marrying, what used to show up in statis-
mid-century. Correction is a good thing, but tical tables as early divorce is now the unrecorded
overcorrection, permanent decline, is clearly not. breakup of a cohabiting couple with children'
The total fertility rate (number of children born (Kurtz 2004: 26). For an appropriate statistical
to women) is 2.59 globally, 2.1 in the industrial- profile, he concludes, we need to know the rates of
ized world, 2.09 in the United States, 1.76 in out-of-wedlock births and the rates of family dis-
Australia, and 1.61 in Canada. Scholars consider solution. 'Between 1990 and 2000, Norway's out-
2.1 the replacement rate (CIA [World] Factbook of-wedlock birthrate rose from 47 to 55%, while
2006). Would maintaining the historic definition Sweden's rose from 47 to 55%' (Kurtz 2004: 27).
of marriage reverse this trend? It would certainly Denmark's stayed about the same, approximately
help. Redefining it, on the other hand, will prob- 45%, a levelling off that occurred because couples
ably do the reverse by making heterosexual cul- married after several births. About 60% of first

born children in Denmark now have unmarried riage is redefined to accommodate same-sex
parents. The rise of more fragile families based on couples, that change cannot help but lock in
cohabitation and out-of-wedlock childbearing and reinforce the very cultural separation
means that during the nineties, the total rate of between marriage and parenthood that makes
family dissolution in Scandinavia significantly same-sex marriage conceivable to begin with.
increased' (Kurtz 2004: 27).
Marriage as the context for parenting is no Although some gay people do indeed have chil-
longer the norm in Sweden. There is evidence dren, most do not. This would be fine i/we could
that this is having a negative effect on children. continue to promote marriage as the one institu-
Kurtz (2004: 28) cites a longitudinal study of all tion that is fundamentally about children and
children born in Stockholm in 1953, showing therefore about the future of society. But redefin-
that: ing marriage in terms of the 'love and com-
mitment' between adult individuals undermines
regardless of income or social status, parental that effort. Clearly, we face a demographic time
breakup had negative effects on children's bomb. To avoid detonation, we will have to see
mental health. Boys living with single, separat- children as more than personal possessions that
ed, or divorced mothers had particularly high supply us with emotional gratification, self-
rates of impairment in adolescence. Another esteem, or social respectability. We will have to
study (Gunilla Ringback Weitoft et al.) finds re-create a culture that actively promotes demo-
that children of single parents in Sweden have graphic continuity.
more than double the rates of mortality, severe The only alternative is to maintain the popula-
morbidity, and injury of children than children tion through immigration. But that solution
in two-parent households. This holds true aft:er entails problems of its own. On purely moral
controlling for a wide range of demographic grounds, for instance, it relies on the notion of
and socioeconomic circumstances. importing people from poor countries to do what
people at home prefer not to do: having children
Obviously, then, not even robust welfare states, and working at poorly paid jobs. Besides, not all
for which the Scandinavians have long been potential immigrants would consider moving to a
famous, can solve the problems that these chil- country that makes no distinction between mar-
dren face. riages and unions that have no function other
Moreover, Kurtz (2004:29) shows that this than personal and emotional gratification, a
Scandinavian pattern is spreading across Europe. country that considers them religious bigots for
He correlates it with both high levels of secular- even making that distinction.
ization and legalization of registered partnerships: At the heart of this campaign for same-sex
marriage is radical individualism (coupled, ironi-
This suggests that same-sex marriage is both cally, with a form of radical collectivism). We
an effect and a cause of the increasing separa- refer not to nationalism, which is about society as
tion between marriage and parenthood. As ris- a whole, but to what is often called 'identity poli-
ing out-of-wedlock birthrates dissociate ties'. Underlying the demand for individual
heterosexual marriage from parenting, same- rights, after all, is a qualification that usually
sex marriage becomes conceivable. If marriage remains hidden by political or ideological rheto-
is only about a relationship between two peo- ric: that this is about rights for the individuals of
ple, and is not intrinsically connected to par- specific groups. The debate over same-sex mar-
enthood, why shouldn't same-sex couples be riage, for instance, is ultimately about gay rights,
allowed to marry? It follows that once mar- not merely the rights of individuals who happen

to be gay. And the rhetoric of individual rights, This, as we say, expresses perfectly the mentality
per se, has become our legal lingua franca. This is that most people now take for granted. By
not the kind of individualism that emerged in the redefining marriage for the reasons stated by
eighteenth century and was expressed most effec- these justices (along with many other things such
tively by those who wrote the American Consti- as no-fault divorce and single parenting by
tution. For the 'framers', personal liberty was choice), hedonism becomes, in effect, the State's
embedded firmly in a context of communal official ideology or even its civil religion. This
responsibility. In short, personal liberty was not analogy is not as far-fetched as it might sound.
synonymous with personal license. Officially endorsed political ideologies, the most
Today, individualism has come to mean some- obvious from recent history being national social-
thing different. Anything goes, many people ism and communism, are the functional equiva-
would now say, as long as they refrain from injur- lents in many ways of civil religions. They do not
ing anyone. The larger interests of society no mediate the sacred, to be sure, but they do medi-
longer function as constraints. We all live now in ate collective identity, meaning, and purpose;
an extremely hedonistic society, and the argu- legitimate moral and legal codes; and so forth.
ment for redefining marriage to include gay cou- It should take no extensive reading of history
ples both relies on that point of view and to realize that hedonism has never provided an
promotes it. That is because most same-sex mar- enduring foundation for any society. Consider the
riages, like many (but not all) other marriages effects of both extreme individualism and hedo-
today, have only a minor public function: repre- nism on how we are preparing for the future of
senting personal commitment. They are primarily our society. At the moment, most parents would
about the needs or desires of adult individuals. be ashamed to neglect their children (or at least
The mentality that underlies radical individu- afraid of the legal consequences). Even now,
alism, at least in this case, is hedonism. By that, though, they are relying more openly and more
we refer not to the affirmation of personal pleas- heavily on the State than ever before to provide
ure but to the glorification of personal pleasure as for and protect the interests of children. Not every
an end in itself Drug addiction, to take only one parent appealing to the court for custody, more-
example, is not necessarily a result of poverty and over, is motivated entirely or even primarily by
ignorance. In some communities, it has become a 'the best interest of the child'. And for whatever
fashionable or even identity-forming 'lifestyle'. reason, more and more parents demand access to
Hollywood stars move in and out of rehabilita- day-care facilities for their infants. These phenom-
tion programs as often as they move in and out of ena have many causes, some of them economic
marriage. Journalists and talk-show hosts applaud conditions beyond the control of any parent. It is
them for talking about these things on national a fact, nonetheless, that the State (along with or in
television. Because we live now in a very hedonis- direct connection with cadres of professional psy-
tic society, the argument for redefining marriage chologists and social workers) has taken over
in this way relies on hedonism. That is because many functions formerly assumed by parents.
same-sex marriages, like most other marriages
today, are based primarily (or solely) on the per- The risks for democracy
sonal and emotional gratification of two adults. In one way, it could be argued that same-sex mar-
As the Canadian justices make clear in their riage supports democracy. The rallying cry of its
own working definition of marriage, this is an advocates, after all, is that gay citizens should have
institution intended ptimarily (for no obvious the same rights as other citizens. In another way,
reasons of public interest) as a way of glorifying though, it undermines democracy. By definition,
the personal and private feelings of individuals. democracy involves both a majority and one or

more minorities. Gay advocates, we suggest, are of children. To place this mentality in its histori-
confused. They want to be a minority but also, cal context, we would argue that that many other
paradoxically, not to be a distinctive minority. groups, notably some feminist ones, have long
They want to be different from the majority, in demanded precisely that the State confer dignity
other words, but not to pay a price for being dif- on them (Patai, 1998).
ferent. If minority status itself becomes intolera- Yet another risk is the undermining of reli-
ble, if the very fact of difference is said to be gious freedom (even though the Metropolitan
inherendy degrading and destabilizing, then how Gommunity Ghurch of Toronto claimed that its
can we sustain any democracy (let alone a 'plural- religious freedom was undermined because its gay
istic' one)? weddings were not recognized by the state).^^
Gay people are different from other people not Not all people care about religious communities
by being gay, according to advocates, but by or even approve of them, but most would admit
being unable to marry each other. Gay people that the government should defend religious free-
cannot become the equals of other people with- dom. Redefining marriage makes it much harder
out access to marriage, they therefore conclude. to do so, however, because those who oppose
This is precisely why gay advocates in Ganada same-sex marriage would be in the position of
rejected civil unions. At issue here, for gay advo- opposing what the larger society classifies as a
cates no less than their opponents, was the very civil right or even a human right. Ganadian law
word 'marriage'. We do not suggest that gay peo- does not force religious communities to marry
ple should see themselves as significantly different gay couples, but someone will almost certainly
from other people (much less that they should challenge that legal loophole. Two rights, after all,
'maintain democracy' by doing so). On the con- will conflict with each other: the right to freedom
trary, as far as we are concerned, gay people of religion versus the right to equality.
should see themselves in any way that they want And what about the risk to academic freedom?
to see themselves. At one time, this amounted to Redefining marriage to include gay couples might
nothing more than the desire to have sex with make it not merely politically incorrect but also
other members of the same sex (which most gay illegal to argue in the classroom - whether at the
people, unlike most straight people, did not con- level of an elementary school, a high school, or a
sider much of a difference). In our time, though, university - that society has any reason at all to
it often amounts to much more: gay or 'queer' promote the heterosexual culture on which every
identity. That, however, is not inherently linked society^ depends for both continuity (producing
with marriage. As some gay activists point out, new generations) and stability (bringing men and
marriage actually undermines gay identity by women together).
encouraging gay conformity to the laws and cus-
Advocates argue that most people will eventu-
toms of straight people.
ally approve of same-sex marriage, because young
Another risk is the infantilization of citizens, people are among its most ardent supporters. In
gay and straight. Inherent in the idea of citizen- that case, every jurisdiction should save time and
ship in any liberal democracy is the idea of adult money by approving of same-sex marriage as
responsibility. Advocates of same-sex marriage, quickly as possible. Democracies are always about
however, insist that the State confer dignity, self- majorities and minorities, true. And if most peo-
esteem, identity, and thus even mental health on ple agree to legalize same-sex marriage, then the
them. This is an unwitting insult to gay people, State must take it very seriously. But counting
turning them into the equivalent of children. heads has nothing whatsoever to do with right
Worse, it is a way of undermining society as a and wrong, wisdom and folly. History clearly
whole by turning all citizens into the equivalent shows that majorities can make stupid or even

sinister choices (which would be worth consider- be self-defeating. This dilemma can only be
ing whether most people approve or disapprove resolved by setting the limits of tolerance at
of same-sex marriage). But so can minorities, that point beyond which tolerance would sub-
especially in this age of identity politics. Democ- vert the very system which makes it possible.
racy is based on the assumption that minorities
will organize politically in their own self-interest This is what the law calls 'freedom in fetters'.
to avoid a tyranny of the majority, yes, but not There is no such thing as absolute freedom,
the assumption that they will disregard the needs because freedom must be built on cultural struc-
of society as a whole. This is common sense. tures. These work best, of course, when they do
How could any society function, let alone a dem- not conflict with natural ones. By definition,
ocratic one, unless most citizens agree to limit moreover, they involve limitations - including
self-interest to some extent? For more about the limitations on freedom that paradoxically
groups that organize politically for their own col- make it possible to sustain freedom.
lective self-interest and the effects on democracy,
see Morton & Knopff (2000), Manfredi (2000). COULD CANADIAN LAW HAVE
Usually, cultural norms are those of majorities. DISCRIMINATED WITH 'MINIMAL
But we have just argued that the majority might IMPAIRMENT', ACCORDING TO THE
or might not be morally justified. It is justified in OAKES TEST, TO GAY COUPLES?
this case, because it relies not merely on the In resolving disputes by giving the rights of one
majority's passing whim or prejudice but on group priority over those of another, we should
countless centuries of human experience all over do so by inflicting as little damage as possible.
the world. We should reform marriage legislation Excluding gay couples from marriage is a neces-
sometimes, to be sure, but in connection with its sary evil, not a positive good. It is the means to
variable features and not its universal ones. an end, moreover, not as an end in itself But
No modern society is homogeneous. Most nothing that we say about redefining marriage
countries have found ways, therefore, of promot- would have precluded other legal measures to
ing tolerance. And gay people have certainly ben- integrate gay people into the mainstream of
efited from that tolerance. But consider another Canadian society.
society. As a very heterogeneous one throughout Although Canadian same-sex couples (like
its long history, India developed a culture of tol- their common-law counterparts), had most of the
erance. Even that, however, has had its limits. economic and legal benefits taken for granted by
Arvind Sharma (1987: 32) writes that the: married couples, we could easily have found ways
of providing still more — especially to protect
two horns of the dilemma may now be identi- their children either directly or indirectly. After
fied. On the one hand, if a religion or a politi- all, the children of gay couples have the same
cal system only tolerates conformism, then needs as other children. But we did not have to
what does its tolerance consist of? It is hardly a redefine marriage in order to do so. That was like
virtue to tolerate the pleasant or the accept- using an atomic bomb to kill a fiy. Other legal
able. It is precisely by tolerating what would remedies, contracts of one kind or another, were
normally not be tolerated that tolerance available.
becomes a virtue. Yet, on the other hand, if In fact, gay organizations in Canada and other
this tolerance of deviance from the norm itself countries were already actively promoting con-
leads to the destruction of the very system tracts on the Internet.''^ The most important
which renders such tolerance possible, then would have been co-parenting agreements 'In
obviously such self-destructive tolerance will the co-parenting agreement', visitors to one site

learned, 'you and your partner can agree to joint- which are now either banned or curtailed by law
ly and equally share parental responsibilities by in Ganada and many other countries).
providing support and guidance to your child; So, why did Ganada not allow civil unions for
authorize the other to consent to medical care for gay couples? Because their advocates had already
your child; devise a custody agreement before any rejected civil union, claiming that this would
separation should one occur; stipulate that each have amounted to 'separate but unequal' treat-
partner will name the other partner as the child's ment and therefore to second-class citizenship. To
guardian in his/her wiir.7'' put it bluntly, they were not interested in com-
Because children need both stability and promise. From our point of view, civil union
resources, moreover, same-sex couples could have would not have replicated marriage. It would
considered domestic-partnership contracts. Other have preserved the historic definition of marriage
contractual measures could have included durable in name only, thereby fostering the illusion that
powers of attorney (for partners who are unable children do not need both mothers and fathers.
to make decisions), wills, and living wills. Many We hoped that same-sex couples to make their
of these measures would be highly desirable for own financial or parenting plans.
any couple, married or unmarried, gay or straight.
Underlying the rejection of civil union by gay Judicial strategies
advocates, however, was a much more important With all this in mind, we find it worthwhile to
matter. Givil union would not, in fact, be identi- summarize the underlying strategies of those who
cal to marriage in all but name. According to advocate same-sex marriage, strategies that the
international law - expressed by the United justices in both Halpern (2002) and Halpern
Nations in its Gonvention on the Rights of the (2003) clearly suggest. We can think of least five
Ghild, a document signed by every country strategies.
except the United States and Somalia, and
affirmed in New Zealand's Quitter case - another
Strategy 1: Allovfc'ing psychological rhetorical
human right accompanies the right to marry. This
(which, in this context, is about emotions) to
is the right to found a family (which has always
preempt philosophical rhetoric (which is about
been among the basic functions of marriage in
ideas). At any rate, these justices ignore the many
the first place). The right to found a family social functions that marriage has always had,
would not, however, accompany the right to form could still have, but will not have, now that the
a civil union. The latter would satisfy the needs of courts have redefined marriage. The justices
adults, therefore, but it would also maintain the define marriage exclusively, for instance, in terms
historically distinctive purpose of marriage. This, of 'love and commitment'. Because this defini-
no doubt, is the ultimate reason for Ganadian gay tion clearly applies to both straight and gay cou-
advocates to rejected civil union. Their problem ples, they see no reason to prevent the latter from
was not that civil union would be so similar to marrying.
marriage, thus obviating the need for a different
name, but that it would be so dissimilar and Strategy 2: Marginalizing children. The justices
therefore create legal problems for same-sex cou- refer to them only in connection with categories
ples who want to have children. The latter would that would level the playing field for gay and
surely demand access to commercial egg or sperm straight adults. Even when the justices actually
banks, to reproductive technologies such as surro- refer to children, they do so from the perspective
gate motherhood, and to even newer technologies of adults.
that would allow them to reproduce by combin-
Strategy 3: Endorsing change as a fait accom-
ing two egg cells or two sperm cells (most of
pli.72 By doing so as a general principle, the

justices trivialize precedent. Halpern (2003) put it unintended consequences of radical changes to
this way: '[T]o freeze the definition of marriage social institutions - not all negative, but often
to whatever meaning it had in 1867 [the Con- unfavourable'.^' In the end, though, he dismisses
stitution Act, also known as the British North all three of these 'conservative' academics without
America Act] is contrary to this country's juris- further ado. 'I do not accept these opinions', he
prudence of progressive constitutional interpreta- says, 'as establishing a justifiable basis for sustain-
tion'.73 Having considered the evidence, ing the institution of marriage as a heterosexual
including the evidence presented in Young's affi- preserve'.^2 Justice LaForme goes even further by
davit, the justices (reluctantly) admit that mar- undermining the value oi all the scholarly argu-
riage between men and women has always been ments. These, he says, resulted from advocacy
the norm both historically and cross culturally. In that had been thinly disguised as academic
other words, marriage between members of the research.83
same sex has always been either forbidden or tol- Strategy 5: Silencing the opposition. The justices
erated as an exception for the few and in special implicitly accuse anyone who thinks otherwise of
circumstances.7'' Justice Blair says that the processeither stereotyping gay people as unfit parents by
of historical change per se is more important than virtue of their supposedly immoral way of life or
the actual patterns revealed by historical analysis supporting religious bigotry. Using procreation as
(and what it might reveal about current needs).75 the defining feature of marriage. Justice LaForme
For better or for worse, so to speak, the justices says, 'appears to be a mere pretext used to ration-
give priority to new ways of understanding mar- alize discrimination against lesbians and gays'.8''
riage, new attitudes toward gay people, and new Elsewhere, he adds that the 'Charter violations
legal priorities established by the Charter. cannot be saved under s. 1 of the Charter. This is
because the law involves no pressing and substan-
Strategy 4: Trivializing the risks. The justices tial purpose, but rather, a purely discriminatory
simply ignore evidence of complexity. Justice one, namely the imposition of one sectarian view
Blair briefly summarizes evidence from the affi- of marriage by the State on those who do not
davits and notes a 'diversity of views',76 especially share that belief.^5 In other words, the historic
in religious communities. These, he adds, are definition of marriage is specifically Christian,
'tenaciously held... and often confiicting'.77 He not universal.
refers generally to the views of 'conservative
Catholic, Islamic and Evangelical Protestant cler- Judicial activism
gy, and some academics'.^s It is true that he refers To the extent that Canadian justices have adopt-
to three of these academics in particular, those ed these strategies, not only in the lower courts
who warn that79 the inclusion of same-sex unions but also in the Supreme Court, we can say that
in marriage could 'undermine and diminish the they have engaged in judicial activism. This has
institution of marriage altogether, with unfore- come under attack in Canada, just as it has in the
seen unfavourable consequences for society. In United States. But it is more deeply entrenched
support of these concerns. Professor Young theo- in Canada than it is in the United States, and
rizes that changing the universal features of mar- opposition to it is less vigorous. Not many Cana-
riage could lead to increased polarization of men dians either bother or dare to challenge what now
and women and/or to an identity crisis for passes for conventional wisdom about their legal
men'.80 And it is true that he acknowledges the and political systems. There are exceptions. Along
work of Shorter and Allen, whose affidavits cite with Morton and Knopff (2000), for instance,
'the experience with no-fault divorce, showing are Leishman (2006) and O'Neill (2006), who
that there can be significant unanticipated and observe that Chief Justice Beverley McLachlin

makes no secret of her belief that 'the values on bureaucracies that interpret and apply those dec-
which the country is predicated' should trump all larations.) Nor do we see anything inherently
other considerations - including what the coun- problematic about the norms that Justice
try's founding documents and legal codes actually McLachlin cites. What sounds noble in theory,
say. According to this philosophy, collective rights however, is not always so noble in practice. The
(in this case, those of gay people) may trump not most fundamental moral norm of any society is
only individual rights but also other collective surely to protect its children, who are by defini-
rights (those of children) and even national rights tion the most vulnerable people of all — much
in the sense of compromising national needs more vulnerable even than minority adults. And
(such as the national need to support families in yet not one but two Ganadian courts (and the
which children are most likely to prosper). The Supreme Gourt albeit implicitly) ruled that the
problem is not merely that Ganada allows groups right of gay adults to freedom from discrimina-
to take precedence over individuals (as Justice tion was more fundamental than the right of chil-
McLachlin [2004] suggests) but that in defining dren to both mothers and fathers. The courts
these groups as 'visible minority communities' or were commendably eager to free gay adults from
'disadvantaged communities', Ganada becomes a discrimination but also lamentably reluctant to
collection of competing and sometimes hostile acknowledge that doing so meant discriminating
communities rather than a nation. against children. We see no historical evidence,
Precisely what is the basis for these rights? In written or unwritten, to suggest that abandoning
addition to written documents such as the Char- children — using them as guinea pigs in a social
ter, Justice McLachlin (2005) includes 'unwritten experiment - is deeply rooted in Ganadian 'val-
norms that are essential to a nation's history, ues'. It really is deeply rooted, however, in some
identity, values and legal system' (or 'usage and of the political ideologies that now prevail not
custom') along with principles of international only in Ganada but also at the United Nations
law endorsed by the nation. And the basis for (Nathanson and Young 2006) under the shelter-
these norms, in turn, is an updated version of ing umbrellas of both postmodernism (which
natural law. Unlike earlier versions, she contin- allows academics to 'deconstruct' the family or
ues, it does not fasten on theology as the source anything else that they dislike without subjecting
of the unwritten principles that transcend the their own preferences to the same logic) and
exercise of state power. It is derived from the his- political correctness (which silences opposition in
tory, values and culture of the nation, viewed in the public square).
its constitutional context. Today's fundamental All justices in all supreme courts are human
norms are cast more clearly and exclusively in and therefore politically oriented in one way or
terms of reason that take at the heart the notion, another. But Ganadian justices, unlike their
in some form, of basic human dignity. To ensure American counterparts, are appointed directly by
human dignity. Justice McLachlin singles out the the prime minister and without public hearings.
following norms: 'government by consent, the It was no accident that Prime Minister Jean
protection of life and personal security, and free- Ghretien appointed Rosalie Abella and Louise
dom from discrimination'. Gharron without public confirmation hearings,
We see nothing inherently problematic about just in time to support his campaign for same-sex
the unwritten sources of law that Justice McLach- marriage. In this system of selection, it is difficult
lin cites. (International law, that of the United to avoid wondering ifthe government appoints
Nations, can indeed be problematic. This is due justices primarily on political grounds. And it will
not to its grand declarations of human rights but not do to argue, as some justices have, that some-
its highly politicized conferences, treaties, and thing mysterious happens to them when they

take office, something that makes them immune Canadian justices. They want to abolish parts of it
to ideological opportunism. that they dislike, even though their jobs require
Elsewhere, Justice McLachlin (2004) observes them, at least in theory, to uphold it. One
that Canadian courts are more willing than favorite target is the Charter's Notwithstanding
American ones to favor collective or group rights Clause, which allows at least some democratic
over individual ones. This is due to differences, restraint on rulings. This clause, s. 33, reads as
she explains, between Canadian and American follows: 'Parliament or the legislature of a
history. She is correct on both counts. By group province may expressly declare in an Act of Par-
rights, though, she refers not to those of the liament or of the legislature, as the case may be,
nation as a whole but to those of specific groups that the Act or a provision thereof shall operate
within it (originally and most urgently Canada's notwithstanding a provision included in section 2
two linguistic groups). 'Canadian equality doc- or sections 7 to 15 of this Charter'. Its clear aim is
trine', she writes, 'is expressly directed at com- to assert the ultimate priority of democratically
bating discrimination and improving the position elected legislatures over the Supreme Court and
of members of disadvantaged groups'. As we therefore to foster judicial restraint as a balance to
(Nathanson and Young, 2001; 2006) explain in judicial radicalism. Irwin Cotler was Minister of
our books on misandry, however, it is by no Justice and Attorney General under the Liberal
means self-evident which groups are truly 'advan- government of Prime Minister Paul Martin; not
taged'. Nor is it self-evident that Canadian 'val- surprisingly, he favored same-sex marriage. He
ues' include the notion of collective guilt or the has been a strong supporter of human rights and
idea that moral ends (preventing inequality or an equally strong opponent of the Notwithstand-
discrimination) can justify immoral means ing Clause, which he would like to eliminate. Jus-
(penalizing one group for the crimes of its ances- tice Abella saw the clause as a hindrance at best
tors). and an offensive anomaly at worst. With that in
mind, she has called the Charter 'ideologically
At any rate, Canada's redefinition of marriage
schizophrenic' (O'Neill 2006: A-17).
to free gay people from discrimination is a classic
example of this doctrine. We see nothing inher- Most disturbing of all is Justice McLachlin's
ently problematic about the goal: making gay attitude, and that of other judicial activists on
Canadians equal to all other Canadians. We do both the Supreme Court and lower courts,
see something problematic about the means: toward their own authority. She refers, as we have
redefining marriage so that children are even already noted, to 'unwritten norms' that are root-
more 'at risk' than they already were. And if its ed in the 'legal conscience' (McLachlin 2005). By
children are at risk, so is society. From this, we that, she means not her own personal conscience
conclude that Canadian equality doctrine ignores but the legal, or judicial conscience that repre-
the potential for conflict not only between two or sents the collective memory of society. But not all
more groups but also between any of those principles are as easy to justify in this way as, say,
groups and society as a whole. Both the American the presumption of innocence in court. Judging
emphasis on individual rights and the Canadian from the public debate over same-sex marriage,
one on group rights, therefore, miss the point which was fierce despite every attempt by the
that no society is really either a collection of indi- government to silence or abbreviate it, it is clear
viduals or a collection of groups. At some point, that the principles invoked by judicial activists
or in some circumstances, the needs of society as who favored same-sex marriage were anything
a whole must prevail. but rooted in the 'collective memory' of Canadi-
Even the Charter does not go far enough in the an society. And the same is true for many other
direction of group rights, moreover, for some controversial rulings. It was Justice McLachlin's

goal, in fact, to make them universally accepted. But their data began to crystallize too late. As
On what authority, therefore, can her rulings Somerville (2000: 281) points out, 'ethics time' is
rest? Obviously, they rest on nothing more than slow time:
her own personal conscience - or to be more pre-
cise, her own personal authority. 'Ultimately', An irreducible minimum time is needed both
according to one editorial about Justice McLach- to obtain the necessary facts on which to based
lin's point of view, 'the top judge's argument good ethics and for a sedimentation-of-values
comes down to trusting judges to do the right process that is essential to doing ethics... A
thing. The issue is the same as ever: [Should we minimum amount of time is also needed for
tjrust Parliament, or trust judges?' [TheMontreal the public to become familiar with the bene-
Gazette 2006: A16). fits, potential benefits, risks and harms of a
new scientific development, not only at the
Her ambiguous answer (McLachlin 2005) is
physical level, but also at the level of its poten-
that the question is meaningless, because 'judges
tial impact on values, norms, traditions, cus-
must be able to do justice [by discerning matters
toms, culture, beliefs ad attitudes.
that go beyond not only written constitutions
and law codes but also popular opinion as exp- For new topics - and marriage, in this sense, was
ressed by Members of Parliament] and at the indeed a new topic - scholars need time to gather
same time stay within the proper confines of their their data, appreciate the complexity, and to
role'. Ganadians should trust judges, in short, to assess the risks. Even though it is too late for
articulate the Nation's unwritten laws (collective Ganada, it is not too late for the United States (or
memory, common values, common law, natural at least for many states in the union) and other
law, and so on) in connection with written laws, countries. Lawyers, judges, and justices now have
whether national or international. Justice Mc- access to extensive data and the arguments that
Lachlin believes that what some people attack as rely on that data. They are in a much better posi-
'judicial activism', in short, is doing what judges tion than Ganadians were to defend the historic
are supposed to do; it is the highest calling, in definition of marriage without resorting to dis-
fact, of any judge. torted and prejudicial notions of homosexuality
and without relying even implicitly on theological
CONCLUSIONS arguments. The stage is set, in other words, for
Supporters of same-sex marriage spent decades the kind of debate on which democracy thrives.
preparing their case. They hired legal advisers.
They published books and articles or produced
Endnotes
1 In addition, the Metropolitan Community
documentary films to mobilize others. Fortun- Church of Toronto (MCCT) wanted permission
ately for them, very few scholars had produced to perform same-sex weddings, but the court
recent historical or cross-cultural studies of mar- 'did not accept MCCT's arguments anchored in
s. 2(a), freedom of religion'. That case involved
riage. Most of the books and articles on marriage religious freedom, which we will not discuss in
had been either practical ones about divorce and detail here.
custody or feminist ones on the evils of marriage 2 Halpern v. Canada (A.G.) , [2002] 60 O.R. (3d)
as a patriarchal institution. When the govern- 321 (Ont. Div. Ct.). Katherine Young presented
ment began looking for expert witnesses to some of the arguments that we use here in Affi-
davit of Katherine Young, Record of the Respon-
oppose same-sex marriage, therefore, they found dent the Attorney Ceneral of Canada, Vol. 2A,
very few. And most of them worried, for good Tab F. (which we will call Young's affidavit) for
reason, about being harassed for defending Halpern (2002) and for EGALE Canada Inc. v.
the historic definition of marriage. Eventually, Canada (A.G.) [2001] B.C.J. No. 1995 (S.C.).
We presented other arguments in Young and
nonetheless, some academics did agree to testify. Nathanson (2003 March 27-30) Marriage-k-la-

Redefining miirriage or deconstructing society
mode: answering advocates of same-sex marriage, appearing on her show to counsel dysfunctional
Conference on Sex. Marriage, and the Family, people of one kind or another. He soon launch-
Emory University, Atlanta; and in Young and ed his own show and immediately became a
Nathanson (2004) The future of an experiment. superstar. Here is how one journalist describes
3 Halpern v. Canada {k.Q) (2003) O.A.C. t72. the phenomenon that he represents: 'Now, we
have reality TV shows that try to get married
4 Qtiilter v. Attorney General [1998] 1 N.Z.L.R.
people to have an affair while the spouse watches
523. The court found that New Zealand's Bill of
and we do, too. The frightening thing is not that
Rights did not, in fact, require a judicial order to
Dr. Phil is so popular, but that, in the current
issue marriage licenses to same-sex couples.
state of things, he falls on the reasonable end of
5 UN Doc CCPR/C/75/D/902/1999. This ruling the spectrum' (Chianello 2004).
denied a right to same-sex marriage.
6 ]oslin V. New Zealand, UN Human Rights Com- 12 Halpern (2002) pnA. 5.
mittee (30 July 2002). 13 Halpern (2002) para. 40.
7 See, for instance, Blair, Halpern (2002) at paras 4 14 Halpern (2003) para. 116.
and 71; Laforme, Halpern (2002) at para. 240. 15 Halpern (2003) para. 5.
8 Blair, Halpern (2002) at para. 32. The justices 16 Halpern (2003) para. 5.
noted that ceremony is an important way of 17 Young KK (2000) Affidavit, note 13; summariz-
indicating commitment, citing Carolyn Rowe's ing Clenn HP Legal Traditions of the World.
affidavit: 'A traditional marriage would allow us Oxford University Press, Oxford.
the opportunity to enter ... a commitment. The 18 Young KK (2000) Affidavit at para. 29 and note
marriage ceremony itself provides a time for fam- 19. This finding is supported by the comparative
ily and friends to gather around a couple in historical study of marriage systems in Quale
order to recognise the love and commitment (1988).
they have for each other' {Halpern [2003] at 19 Young, Affidavit at para. 6 and notes 1 and 2.
para. 9). Of course, gay people have had com- 20 LaForme, Halpern (2002) at paras 235-238. Jus-
mitment ceremonies for some time, now; we tice LaForme refers generally to evidence from
need not redefine marriage to continue that. the 'earlier Courts' and not to the cross-cultural
9 Blair, Halpern (2002) at para. 5. evidence presented in Young's affidavit, which
10 Winfrey's reputation as a driving force behind the cited cross-cultural studies as well as her own
current trend toward intimate revelations in pub- study of world religions. According to Justice
lic is hardly a secret. Consider a discussion on PBS LaForme, 'the AGC submits that restriction
of Bill Clinton's autobiography. My Life. Almost against same-sex marriage flows from the objec-
immediately, presidential historian Michael Besch- tive ... which it contends is essentially to further
loss commented on the prevalence in this book of procreation and provide institutional support
pop psychology. Clinton talks about his tough to families with children' (LaForme, Halpern
childhood, for instance, hoping to gain sympathy [2002] at para. 233). The Attorney General had
for misdeeds in his personal life. Richard Norton argued in the hearing that gay couples are
Smith, of the Lincoln Presidential Library and excluded from marriage, because they do not
Museum, agreed: 'You almost feel as if the author have the biological capacity to conceive a child
of this book is Oprah. There's a lot of pop psy- together. We have several problems with that
chology. There's a lot of tracing to the origin of proposition. It reduces marriage to mating
what he refers to as his "demons", what an earlier (intercourse) and procreation to the production
generation might have called "character flaws",' of children and excludes the process of bringing
('His Life', Michael Beschloss and Richard Norton children to maturity and ensuring renewal of the
Smith interviewed by Cwen IfiU, News Hour with group (family, clan, community, and so on). For
Jim Lehrer, PBS, WETK, Pittsburgh, N.Y, 21 more about this, see Young and Nathanson
June 2004). (2003). By reducing marriage to biology, it
11 Phil McGraw is a psychologist. After his license reduces marriage also to the realm of adults. In
was suspended in Texas, because of an affair with other words, it ignores the perspective of chil-
one of his patients, he and a friend began dren. As we show later on in this article, sup-
a new career: preparing witnesses to testify in ported by social scientific evidence, children
major cases. That is how he met Oprah Winfrey, need their biological parents and also a parent of
then being sued by Texas cattlemen for telling each sex.
her viewers that she would never again eat a 21 LaForme, Halpern (2002) at paras 240 and 241.
hamburger. Winfrey liked his blunt approach 22 LaForme, Halpern (2002) at para. 242.
and took him on as her protdgd. He began 23 Halpem (2003) at para. 121.
VolumeB, Issue 2, November 2007 JOURNAL OF FAMILY STUDIES 171

24 In cases about' discrimination, the legal test starts Immigration) [1999] 1 S.C.R. 497 at para. 530;
with s. 15(1) of the Charter. Plaintiffs must cited in Halpern (2003) at para. 3. Because the
establish the facts that support their charges. If justices relied on Halpern (2002), it is worth not-
the Court finds these facts compelling, defen- ing here that Justice LaForme had related that
dants can turn to s. 1 as a defense. That requires notion of dignity specifically to same-sex mar-
them to prove that discrimination is justified riage: 'The Applicant Couples further submit that
within the terms of s. I. In short, those opposing their exclusion from marriage offends human dig-
same-sex marriage would have the s. 1 burden of nity by withholding the rights of equality, liberty,
proof. In Halpern (2002) at para. 36, Justice and security' (LaForme, Halpern [2002] at para.
Blair summarized the process by quoting from 27). Elsewhere, he had said more explicitly that
Justice Iacobucci {Law v. Canada (Minister of 'denial of the freedom to marry ... threatens the
Employment and Immigration), [1999] 1 S.C.R. well being and psychological integrity of all gays
497). The court 'should make the following and lesbians, their children and society at large'
three broad inquiries. First, does the impugned (LaForme, Halpern [2002] at para. 181).
law (a) draw a formal distinction between the
claimant and others on the basis of one or more 34 Among the more recent books on Jewish assimi-
personal characteristics, or (b) fail to take into lation and its consequences is that by Elon; see
account the claimant's already disadvantaged especially chapter 8, 'Assimilation and Its Dis-
position within Canadian society resulting in contents' (Elon 2002: 259-296).
substantively differential treatment between the 35 Loving V. Virginia, 388 U.S. 1 (1967).
claimant and others on the basis of one or more 36 Halpern (2003) at para. 70.
personal characteristics? If so, there is differential 37 Steele, 'Selma'. So many people have claimed
treatment for the purpose of s. 15(1). Second, that same-sex marriage is a civil right that we will
was the claimant subject to differential treatment refer only to the one who actually discussed it
on the basis of one or more of the enumerated with Steele. In the New Republic's online journal,
and analogous grounds? And third, does the dif- Sullivan (2004) replied to Steele's article by quot-
ferential treatment discriminate in a substantive ing Earl Warren's dictum from Loving v. Virginia:
sense, bringing into play the purpose of s. 15(1) 'Marriage is one of the basic civil rights of man'
of the Charter in remedying such ills as preju- and adding his own take: 'The right to marry
dice, stereotyping, and historical disadvantage? whomever you wish is a fundamental civil right.'
The second and third inquiries are concerned Never mind that no one, not even a straight per-
with whether the differential treatment consti- son, actually has that right. No one, for instance,
tutes discrimination in the substantive sense is allowed to marry a sibling or a parent. There
intended by s. 15(1)'. is, in fact, no such thing as an absolute right.
25 Blair, Halpern (2002) at para. 6. 38 Here, in s. 1, the burden of proof is on the
26 LaForme, Halpern (2002) at para. 181. defendant - in this case, the government - to
27 Halpern (2003) at para. 60; quoting/ Iacobucci show that discrimination is justified in connec-
in Law v. Canada (Minister ofEmployment and tion with compelling interests of society (and
Immigration), [1999] 1 S.C.R. 497 at 529. rationally connected with those interests) and
28 Halpern (2003) at para. 72. minimal in scope. There was some question,
however, about whether the court needed to
29 Halpern (2003) at para. 6. consider s. 1 in this particular case. 'There is no
30 Halpern (2003) at para. 104. legislative provision to be examined', wrote Jus-
31 LaForme, Halpern (2002) at para. 18L tice LaForme in Halpern (2002); 'therefore no
32 The term 'self-worth' (a common synonym for s. 1 Charter analysis is required. If there is such
'self-esteem') turns up several times in this case, an analysis, these many egregious infringements
sometimes with 'self-respect'. See, for example, cannot be demonstrably justified in a free and
Halpern (2003) paras 3, 5, and 78; see also democratic society. The exclusion of same-sex
LaForme, Halpern (2002) at para. 181. No obvi- couples serves no pressing, nor even legitimate,
ous distinction is made between 'self-worth' or governmental objective' (LaForme, Halpern
'self-esteem' and 'self-respect' - although Sachs [2002] at para. 30[v]). In Justice LaForme's
(1981: 345-360) has used linguistic analysis to opinion, a s. 1 analysis is necessary - not 'stricdy'
make one. Both are psychological, at any rate, necessary, to be sure, but desirable in view of
and both were used by the Court in close con- the importance of this case (LaForme, Halpern
nection with the word 'dignity'. They must be
[2002] at paras 220-266). See also LaForme,
understood, therefore, either as synonyms for
'dignity' or as its primary features. Halpern (2002) para. 229. His colleagues, too,
saw the need for a s. 1 analysis. Justice Heather
33 Law V. Canada (Minister of Employment and Smith simply stated that she agreed with her col-
JOURNAL OF FAMILY STUDIES Volume 13, Issue 2, November 2007

leagues on this point (Smith, Halpern [2002] at 52 Does this mean that gay people are programmed
para. 2d). Justice Blair had more to say. 'I agree, by culture to be incapable of family-like behav-
although I am more inclined than LaForme J. to iors - that they are culturally determined, in
think that a s.l analysis is required in these cir- other words, only to have sexual relations? Cer-
cumstances' (Blair, Halpern [2002] at para. 2Id). tainly not! Cay people can, and often do, engage
Acknowledging cases in which the Supreme in family-like behaviors. The only question is
Court of Canada had held that s. 1 might not whether redefining marriage 'to celebrate the love
always be appropriate (Blair, Halpern [2002] at between any two people' would fulfill the needs
para. 86), Blair observed that it 'is required when of children, men, women, and society as a whole.
considering the constitutionality of a common We say that it would not.
law rule in circumstances such as this' (Blair, 53 Halpern (2003) at para. 107.
Halpern [2002] at para. 85). 54 We have relied here on Frayser; see especially
39 Blair, Halpern (2002) at paras 122-125. The chapter 2:17-57. She examined both the biol-
Oakes test establishes 'whether a law is a reason- ogical and cultural aspects of reproduction and
able limit on a Charter right or freedom in a free distinguishes carefully between them. The Amer-
and democratic society. The party seeking to ican Sociological Association has a section (the
uphold the impugned law has the burden of largest one) devoted specifically to 'sex and
proving on a balance of probabilities that (1) gender' (not either 'sex' or 'gender'). A Google
The objective of the law is pressing and substan- search under 'sex and gender' yielded 4,160,000
tial; and (2) The means chosen to achieve the hits. Clearly, this distinction is not a controver-
objective are reasonable and demonstrably justi- sial one. Experts disagree with each other on pre-
fiable in a free and democratic society. This cisely how much importance they ascribe to
requires: (A) The rights violation to be rationally either 'sex' or 'gender', but all agree that human
connected to the objective of the law; (B) The beings are composites of both. One source of
impugned law to minimally impair the Charter confusion has been popular usage, in which the
guarantee; and (C) Proportionality between the two words are often used interchangeably.
effect of the law and its objective so that the Another source of confusion is history. During
attainment of the objective is not outweighed by the twentieth century, some feminists demanded
the abridgement of the right' {Halpern [2003] at that scholars transfer some phenomena from one
para. 113; citing/?, v. Oakes, [1986] 1 S.C.R., category to the other. Characteristics that people
103 at paras 138-39). had once considered innate (male or female)
40 Blair, Halpern (2002) at para. 117; his emphasis. were reclassified as cultural (masculine or femi-
41 Halpern (2003) at para. 129. nine). More recently, scholars have found that
42 Halpern (2003) at para. 131. many characteristics are both innate and cultur-
43 It could still allow religious people, however, al. The particular distinction that we have made
to be married by their churches, synagogues, - between copulation and marriage - is not a
mosques, temples, and so on. controversial one.
AA Halpern (2003) at paragraph 120 (out of 158). 55 For comments on this problem, ideological dual-
45 Halpern (2003) at para. 130. ism, see Patai (1998). This was the main topic of
46 Consider also the case of post-menopausal our own book (2001).
women. In much earlier times, very few women 56 This is an argument made by evolutionists and
survived past the age of childbearing. Late mar- evolutionary psychologists. For the former, see
riages, therefore, seldom occurred. These are now Ceary and Flinn (2001: 5-61). The authors ana-
more common but remain exceptions. Even so, lyze the transition from primates to humans. For
they support the symbolism of marriage, in additional references, see Browning (2003:
short, and thus serve communal needs. 106-111).
47 These would include allowing the wives of infer- 57 See also note 4.
tile husbands to sleep with other men or estab- 58 Halpern (2003) at para. 129.
lishing sperm banks. 59 Halpern (2003) at para. 121.
48 //a//)fr« (2003) at para. 119. 60 Halpern (2003) at para. 134.
49 Halpern (2003) at para. 123. 61 LaForme, Halpern (2002) at para. 204.
50 See Young, Affidavit. 62 Blair, Halpern (2002) at para. 65.
51 Anthropologists distinguish between mating and 63 For the suicide rates of men and women, see
marriage (e.g. Reynolds 1991: A6). For the latest 2001 Annual Report (Ottawa: Statistics Canada
scientific research on the relation between nature 2002:46); see also Thompson (2002). For the
and culture in the process that bonds men and school dropout rates of men and women, see
women, see Fisher (2004). 'Labour Force Statistics'.

64 Halpern (2003) at para. 93. own religious teachings, including same-sex mar-
65 Unlike Canada and every other Western country, riages. Similarly, there is nothing in the common
the United States is almost reproducing itself. law definition of marriage that obliges MCCT to
One explanation for this demographic exception perform only heterosexual marriages' {Halpern
is the high number of recent immigrants to the [2003] at para. 57). Under 15(1), the church
United States from Latin American countries, claimed that the common-law definition discrimi-
which still foster big families. But Americans nated against its religious doctrines and practices.
should not be complacent. More and more The court disagreed, saying that 'any potential
immigrant women will be educated, after all, discrimination arising out of the differential treat-
and educated women have fewer children, every- ment of same-sex marriages performed by the
where, than uneducated women. See 'People' MCCT is based on sexual orientation. This differ-
(CIA [Wodd] Factbook 2006). ential treatment is not based on the religious
beliefs held by the same-sex couples or by the
66 Halpern (2002) at para. 117.
institution performing the religious ceremony'
67 See Wilson (1955), whose massively popular {Halpern [2003] at para. 58).
book touched a nerve among American men in
69 Human Rights Campaign Foundation (Working
the same way that Peyton Place, by Metalious did
for Lesbian, Cay, Bisexual and Transgender
among American women. Later made into a
movie, it clearly 'spoke' to millions about mid- Equal Rights) (2004a).
dle-class life. Wilson's protagonist works in a 70 Human Rights Campaign Foundation (Working
company that values conformity and respectabil- for Lesbian, Gay, Bisexual and Transgender
ity in its rising executives; only those who marry Equal Rights) (2004b). One problematic aspect
'suitable' women can expect to rise in the ranks. of this agreement is custody, because a biological
Why? Because company presidents believe that parent could show up and claim priority over a
these men, with ambitious wives to support, are non-biological parent despite a co-parenting
more stable — more likely to do what they are agreement. Courts would have to deal with this
told without complaining - than unmarried problem on a case-by-case basis.
men; they believe that the latter, with fewer vest- 71 Exclusion from marriage, wrote Justice LaForme
ed interests in the status quo, are more likely to in Halpern (2002). 'causes numerous egregious
take risks. harms. It threatens the well being and psycholog-
68 For the details of this case, see Blair, Halpern ical integrity of all gays and lesbians, their chil-
(2002) at paras 13-16. The Metropolitan Com- dren and society at large. Exclusion from civil
munity Church of Toronto claimed {Halpern marriage threatens the psychological integrity
[2003] at para. 51) that the common-law defini- and sense of self-worth of lesbians and gays'
tion of marriage violated its religious freedom (LaForme, Halpern [2002] at para. 181).
under both s. 2(a) of the Charter and s. 15(1). 72 Blair, Halpern (2002) at paras 61; 66-69.Justice
Under s. 2(a), the church claimed that the com- Blair presented two contradictory positions on
mon-law definition of marriage had been estab- the changes that would be involved in redefining
lished not merely by Christians in general but by marriage but clearly prefers one of them. On the
Anglicans in particular, and Anglicans had never one hand, he acknowledged that much more
accepted the legitimacy of same-sex marriages; than a minor rewording of the law would be
therefore, the legal definition was unconstitution- involved: 'The linguistic change seems simple
al by 'enforcing a particular religious view of mar- and straightforward enough on its face. It may
riage and excluding other religious views of even follow logically from the earlier conclusions
marriage' {Halpern [2003] at para. 51). The court I have drawn. However the consequences and
disagreed. Even though the state did not recognize potential reverberations fiowing from such a
these gay weddings, after all, it did not prevent transformation in the concept of marriage, it
them from taking place. In this way, the situation seems to me, are extremely complex. They will
was very different from the one that resulted from touch the core of many people's belief and value
'blue laws', which had once prevented even non- systems, and their resolution is laden with social,
Christians from working on the Christian Sab- political, cultural, emotional and legal ramifica-
bath. The 'common law definition of marriage tions ... This is not an incremental change in the
does not oblige MCCT to abstain from doing law. It is a profound change' (Blair, Halpern
anything. Nor does it prevent the manifestation of [2002] at paras 97-98). On the other hand, he
any religious beliefs or practices. There is nothing trivialized the change by emphasizing the ease
in the common law definition of marriage that with which it could be accomplished. He asked
obliges MCCT, directly or indirectly, to stop per- 'whether the law in Canada today is sufficiently
forming marriage ceremonies that conform to its open and adaptable to recognize a broader

rational as the defining characteristic of marriage 106). As evidence of change on closely related
than heterosexual procreation and its surround- topics, he referred to changes in benefits to meet
ing religious paraphernalia'. And his answer was the needs of gay couples (LaForme, Halpern
simple: 'In my view, ir is' (Blair, Halpern [2002] [2002] at para. 128), an obligation of the courts
at para. 66). In any case. Justice Blair's main 'to ensure that the common law evolves and
point was that change had come. Therefore, the develops in a manner that reflects contemporary
discussion of its implications had become irrele- social reality and the values underlying the Char-
vant. 'Cultures and social mores, however, as well ter' (LaForme, Halpern [2002] at para. 135), and
as faiths and religions and laws and economics, the belief that 'marriage - rather than being an
all tend to be reflective of the physical, environ- unchanging, monolithic entity ... has been a dra-
mental, technological and scientific realities of matically changing and variable institution'
the times. These realities can and do shift. (LaForme, Halpern [2002] at para. 150), inc-
Indeed, since the early to mid-20th century, luding 'litigation seeking the recognition of
developed societies have been transformed in marriages of same-sex couples ... [as] part of
geometrically progressive fashion as a result of the contemporary history of marriage itself
changes in technology, communications, trans- (LaForme, Halpem [2002] at para. 152).
portation, applied sciences, social sciences, world 73 Halpem (2003) at para. 42.
economies, global mobility and - Canada, par- 74 Blair, Halpem (2002) at paras 41-48; 57; citing
ticularly - multiculturalism. We live in the 'glob- Young and others. Justice Blair held that histori-
al village'. Cultural and religious diversity are cal precedents (same-sex marriage as an excep-
defining features of the Canadian mosaic. For- tion to the norm of marriage) plus rhe evolution
mer 'realities' are not necessarily any longer cur- on marriage 'provide context against which the
rent 'realities' (Blair, Halpern [2002] at para. 68). question of whether modern-day civil 'marriage'
Justice LaForme presented two contradictory should be broadened to encompass such unions'
positions on change, too, but clearly preferred should be considered' (at para. 48). Justice
one of them (LaForme, Halpern [2002] at para. LaForme agreed. Although he acknowledged the
178). On the one hand, he acknowledged the norm of marriage and some exceptions that
historical importance of heterosexuality in mar- 'included unions between member of the same
riage. 'I can say that whatever one gleans from sex', the real question for him was how that
the evidentiary conclusions presented by which- fits with the 'fundamental values of today that
ever party — marriage throughout history has are enshrined in the Constitution Act, 1982'
most often been interpreted and applied as (LaForme, Halpern [2002] at para. 157). In
meaning opposite-sex couples' (LaForme, Hal- short, both justices used exceptions as precedents
pern [2002] at para. 157). By that, he meant the for change. In themselves, they do not provide a
reproductive capacities of those couples. On the strong case but when coupled with today's
other hand, he trivialized that fact. 'I do not changes, they help make the case.
agree that the evidence — such as it is - supports
75 Blair, Halpem (2002) at paras 31; 49-58; 60; 68;
the AGC's proposition that procreation is the
77; 97-98.
essential objective of marriage. Indeed, the evi-
76 Blair, Halpem (2002) at para. 123.
dence actually demonstrates that it was only
recently — when same-sex couples began to 77 Blair, Halpem (2002) at para. 123.
advance claims for equal recognition of heir con- 78 Blair, Halpem (2002) at paras 123-124.
jugal relationships - that some Courts began to 79 Blair, Halpem (2002) at para. 125.
infer that procreation was an essential compo- 80 Blair, Halpern (2002) at para. 125.
nent to marriage. There is simply no evidence 81 Blair, Halpern (2002) at para. 125.
that convinces me that those earlier Courts, 82 Blair, Halpem (2002) at para. 126. See also para.
when developing the common law rules regard- 88.
ing the validity of marriage and capacity, viewed 83 See LaForme, Halpern (2002) at para. 142. Here
procreation as a purpose of marriage' (LaForme, is how Justice LaForme assessed evidence in the
Halpern [2002] at para. 238). Moreover, Justice affidavits: 'This 'evidence' — perhaps not surpris-
LaForme held that the principle of change is ingly - is at considerable odds with each other's
embedded in the law itself 'Canadian Courts interests and it covers a variety of fields and top-
have repeatedly declared that the language of the ics. In reality, much of it - from all the parties -
B.NA. Act "must be given a large and liberal amounts to advocacy tendered in the guise of
interpretation" recognizing "the magnitude of expert testimony. I am of the opinion, and wish
the subject with which it purports to deal in very to place on record that such an approach is total-
few words" ' (LaForme, Halpern [2002] at para. ly unhelpful to the Court and much of the evi-
dence is neither entitled to nor can it be ascribed

very much weight' (LaForme, Halpem [2002] at of male delinquency, fournal of Marriage and the
para. 143). With all due respect, this is certainly Family 58(2): 491.
not an academic way to assess evidence. In our Creighton SJ (1985) An epidemiological study of
opinion. Justice LaForme either could not be abused children and their families in the United
bothered to assess it or, worse, found it politically Kingdom between 1977 and 1982. Child Abuse
expedient not to do so and therefore avoided the and Neglect 9:441 -448.
problem altogether by dismissing it. His state- Daly M and Wilson M (1985) Child abuse and
ment revealed an unwittingly anti-intellectual other risks of not living with both parents.
bias that has become prevalent in some academic Ethology and Sociobiology 6:197—210.
and professional circles. (If change per se were Daly M and Wilson MI (1994) Some differential
both inevitable and desirable, as the justices attributes of lethal assaults on small children by
implied, then this change - a shift toward anti- stepfathers versus genetic fathers. Ethology and
intellectuality - would be as inevitable and desir- Sociobiology 15: 207-217.
able as any other change.). Whether political Daly M and Wilson MI (1996a) Violence against
partisanship or postmodernism motivated his
stepchildren. Current Directions in Psychological
opinion is unclear, although that question is
Science 3: 77-81.
moot in view of the fact that political partisan-
Daly M and Wilson M (1996b) Evolutionary
ship in our time relies heavily on postmodernism
psychology and marital conflict: The relevance of
— or to put it another way, that postmodernism
stepchildren. In Buss DM and Malamuth NM
amounts to political partisanship. Postmodernists
(eds) Sex, Power, Conflict: Evolutionary and
believe that there can be no such thing as com-
plete objectivity and are therefore prepared to Feminist Perspectives, pp 9—28. Oxford University
abandon what would be a futile search for it. Press, London.
Instead, they choose 'our' bias instead of 'their' Deveraux, MS (2001) How healthy are Canadians -
bias. 2001 Annual Report. Health Reports 12(2): 41.
Ellis JM [1989) Against deconstruction. Princeton
84 LaForme, Halpem (2002) at para. 242. University Press, Princeton, NJ.
85 Laforme, Halpern (2002) at para. 31(iv). Elon A (2002) The pity of it all: A history offews in
Germany— 1743—1933. Metropolitan Books,
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Case3:09-cv-02292-VRW Document302-2 Filed12/11/09 Page1 of 14
Exhibit B
Hindu Marriage
Katherine K. Young and Arvind Sharma
Behold the comely forms of Surya! Her border-cloth and her

headwear, and her garment triply parted, these the priest has
sanctified.
I take thy hand for good fortune, that thou mayst attain old age
with me thy husband. Devas — Bhaga, Aryaman, Savitri,
Purandhi — have given thee to be my house-hold’s mistress.
Pushan, arouse her, the most blissful one; through whom a new
generation will spring to life. She, in the ardour of her love, will
meet me, and I, ardently loving, will meet her.
For thee at first they escorted Suryaa with her bridal train; [g]ive
the wife, Agni, to the husband and also give her progeny.
Agni has given him the wife with long life and brilliance; long-
lived be he who is her husband, may he live a hundred autumns.
Soma gave her to the Gandharva, the Gandharva gave her to Agni,
[a]nd Agni has given her to me granting me wealth and sons.1
[Aug 5, 2005] As these verses from the Rgveda, the oldest and most sacred Hindu
scripture, illustrate, Hindus long for the divine prototype of marriage. Each couple
is married the way the sun, Surya was married to his wife, Suryaa.2 In primal
religions, for instance, people are truly alive—therefore, real, true, and sacred –
only when they act out archetypes; at other times, they are profane. Ancient
Hindus, moreover, believed that they lived in a world governed by deities; they
not only sought the blessing of the gods — Bhaga, Aryaman, Savitri, Purandhi —
but also modeled their lives as far as possible on them.
This tendency persisted in classical Hinduism, when the pantheon came to
include a new generation of deities; their deeds are recorded in the Puranas just as
the deeds of earlier deities are recorded in the Vedas. In this evolved pantheon,
Siva emerged as one supreme deity for many Hindus just as Visnu did for others.
In one form, this great ascetic was overwhelmed by the ascetic powers of Parvati,
and was won over by her. India’s most famous classical poet Kalidasa says that
Siva and Parvati are as close to each other as word is to meaning.3 And in one
famous image of the couple, Siva and Parvati are shown not merely as close to
each other but as having merged in each other, their proximity being carried to the
point of androgyny. Even today in Maharashtra, women worship coloured clay
images of Parvati and Siva and retell the story about how Parvati used the power
1
of her austerities to attract Siva as her husband and even became half of his body
(ardhanarisvara).
Another version of the divine marriage is between the woman
Antal and the great god Visnu (also a supreme deity, in some Hindu
circles, and therefore Siva’s competitor). Antal was a devotee of
Narayana-Visnu in ninth century Tamilnadu (South India). In her
Nacciyartirumoli, she dreams of marrying him in his incarnation as Krsna.
I had a dream O Sister! The town was decked with festoons and
golden urns. Surrounded by a thousand caparisoned elephants our
lord Narayana came walking towards me.
I had a dream O Sister! Under a canopy of Areca fronds, he stood

like a lion called Madavan alias Govindan. They fixed our
wedding for the morrow.
I had a dream O sister! Indra and the hordes of celestials came.

They approved the match and chanted Mantras. Andari his sister
draped me with the bridal Saree and garland.
I had a dream O Sister! Scores of sages and seers chanted on a high

key; they anointed us with waters from the four Quarters, then tied
the talisman-thread on our wrists.
I had a dream O Sister! Bright young ladies with lamps and sacred
urns came to greet our king of Mathura. The Earth trembled as he
strode with sandaled feet.
I had a dream O Sister! Drums beat and conches blew under a

canopy of pearls on strings. Our lord and cousin Madhusudana
held my hand in his.
I had a dream O Sister! Learned priests recited from the Vedas and
laid the faggots on the Darbha grass with Mantras. Like an …
elephant-bull, he led me around the fire-altar.
I had a dream O Sister! Our lord and master Narayana with lotus
hands, – our sole refuge in this and seven lives to come, 4 – lifted
my foot and stood me on the grindstone.
I had a dream O Sister! Bright-faced brothers with bow-like

eyebrows stood me before the kindled fire. They placed my hands
over the lion-like Achyuta’s, then heaped puffed-rice for feeding
the fire.
2
I had a dream O Sister! They smeared me with red powder and

sandal paste, and took us around the town on an elephant, then
bathed us both with scented water.
This decad [sic] of pure Tamil verses by famous Viliputtur-King’s

daughter Goda, describes her dream of marrying the cowherd-lord.
Those who sing it will be blest with good progeny.5
This wedding hymn combines elements of the northern Rgvedic marital paradigm
and southern non-Vedic traditions. They have been crafted into a sectarian view
of marriage – that of the Srivaisnavas of South India. Devotees came to consider
Antal an incarnation of the goddess Laksmi, wife of the Lord. And interpreters of
the tradition came to understand Antal’s dream of marrying the Lord as
foreshadowing the actual marriage between Visnu and Laksmi in her incarnation
as Antal. Devotees express this marriage liturgically at an annual festival in all
Srivaisnava temples to this day and chant Antal’s wedding hymn. The pattern has
become paradigmatic, in fact, for every Srivaisnava wedding. They celebrate each
one by singing the sixth decade of the Nacciyartirumoli – Antal’s marriage
dream.
Hindus associate the beginning of marriage with development of human
nature. According to the great Hindu epic, the Mahabharata: “Pandu, father of the
five great Pandavas, informs his wife that free sex of men and women like cattle
continued till Svataketu, son of sage Uddalaka, introduced the institution of
marriage.”6 In other words, human nature needs the culture of marriage as its
complement, a fact that is born out by evolution,7 because human behaviour is
governed less by instinct than animal behaviour is. Culture is essential to the
reproductive and intergenerational cycles.
This effort to sublimate marriage, as it were, by modeling it on divine
prototypes or appealing to divine matrimony as an ideal, might well be an effort
to secure social stability for the institution by sanctifying it. Society has its own
stake in a stable marriage, because the historical record suggests that marriage is
the best context for raising children.
The Sanskrit scriptures reflect and promote the worldview of Brahmins,
the highest caste. Because this is true of marriage, we will refer to the dominant
and scriptural based form of marriage as “elite” marriage (although it eventually
came to include all castes – especially the upper, or “twice-born” ones – that have
imitated its worldview in the interest of upward social mobility).
Hindu scriptures speak of marriage as “taking [the girl] out [of her
paternal home] (udvaha),”8 ‘taking [her] for a special purpose (vivaha),”
“bringing her near (upayama).” In addition, several words refer to important
events in the wedding ritual: “going round [the sacred fire]” (parinayana) or
“taking seven steps [around the fire] (saptapadi).” and “taking her hand
(panigrahana),” Manu, the great lawgiver (who lived sometime between the
second century BCE and the second CE) summarizes the purpose of marriage as
“Offspring, rites prescribed by Law, obedient service, the highest sensuous
3
delights, and procuring heaven for oneself and one’s forefathers – all this depends
on the wife.”9
In this perspective, the wedding is a samskara. The word denotes making
something perfect. It connotes the rites of passage from conception to death,
however, which provide transitions from one stage of life to another. They purify
people and then make them fit for the specified purpose of each stage. In short,
samskaras are sacraments. The wedding is pre-eminent among these samskaras,
according to some traditional authors, because it provides entry into the
householder stage of life – and that supports the other stages of life:10 According
to Manu, “As all living beings exist dependent on air, so people in other orders of
life exist dependent on the householder.”11 The elite form of marriage is called the
gift of a daughter (kanyadana). As a sacrament, elite marriage was traditionally
monogamous and for life; extended families supported wives whatever the
circumstances – infertility and abandonment by husbands, say, or widowhood.
The system precluded both divorce and remarriage. But as we will show, Hindus
have made many accommodations and even subverted this ideal of monogamy.
Elite Hinduism recognizes marriage as the norm, although it allows life-
long asceticism as an exception as long as only spiritually evolved men follow
this path or only at the end of life – that is, after men have passed through the
householder stage and fulfilled all their duties to society. Put another way, elite
Hinduism has structurally contained asceticism to keep it a minority but highly
esteemed orientation. Lower-caste Hinduism has understood marriage as a
contract, on the other hand, rather than a sacrament. It involves few rituals and
allows both divorce and remarriage.
Universal and nearly universal features of Hindu marriage
In this section, we will analyze Hindu marriage from a comparative perspective

based on one study of marriage in small-scale societies and the world religions of
large-scale ones.12 It is important to note that every culture’s definition of
marriage appears unique, because its variable features, which reflect necessary
adaptations, 13 mask the universal ones.14
Universal and nearly features of marriage include preparation: socialization into

the idea that most people must marry, that procreation must occur only under
specific conditions, and that only specific people are eligible partners. The
development of an alliance between a man and woman in the case of “love
marriages” or between families first in the case of arranged ones. The highest
authorities and incentives give these ideas their status. Marriage refers implicitly
also to the wedding proper: facilitating the couple’s bonding – including orations
about mutual affection and companionship, the importance of mutual support and
duties toward future children, and fidelity for the sake of durability. Because the
wedding is a public act, it provides communal support and accountability. Finally,
marriage includes the later effects of weddings: maintaining the intergenerational
4
cycle (children maturing, entering into marriage, having children, bringing them
to maturity, and caring for the aged parents who had once cared for them.
Cross-culturally, the variables of marriage include arranged marriage or
chosen marriage; polygamy or monogamy; endogamy or exogamy; marrying up
or marrying down; dowry or bride price; bride service or no service; sexual
equality or sexual hierarchy; an ideal of many or of few children; extended family
or nuclear family; residence with the bride’s family, the groom’s, or neither;
patrilineality, matrilineality, or neither; divorce allowed or prohibited; remarriage
allowed or prohibited; and so forth.
Hindu marriage, too, can be viewed as a constellation of these universal,
nearly universal, and variable features. We will discuss that in the next section.
Encouragement of procreation under specific conditions: One perennial

problem in every human society is how to encourage responsible reproduction.
The sexual instinct is very powerful. It leads not only to intercourse but also, in
many cases, to children. Culture, in this case marriage, therefore, must do what
nature itself does not do. It ensures sexual responsibility. Cultures with strong
marriage systems require that a wedding precedes intercourse; this makes
potential parents places self-conscious about future obligations to the young and
to each other.
In the Rgvedic wedding hymn that we have already mentioned, for
instance, we read: “Give the wife, Agni, to the husband and also give her progeny.
Similarly, Antal links marriage with the future prospect of children: “Those who
sing [the decade of stanzas about her dream to marry the Lord] will be blest with
good progeny.”15 When couples make oaths to the deities and to the guests, the
resulting solemnity provides them with enough incentive to carry out their future
responsibilities. Contemporary social-science evidence supports this ancient idea:
children who are born to biological parents in the context of marriage and reared
by them usually have the best life outcomes.16
In the past, having children was so important that, during weddings,
priests recited mantras that create the power to help achieve this goal. After the
wedding came sacralized intercourse and a special samskara to achieve
pregnancy. From then on, couples were required to have intercourse during the
wife’s fertile period.
Highest authority and incentives: Cross-culturally, marriage has been

legitimated by the highest authority – usually ancestors, deities, or laws. Hindus
look back to their Rgveda, especially the ancient and paradigmatic wedding hymn
(10:85). Out of its 47 verses, as many as 29 are quoted in elite Hindu marriages to
this day.17 The Rgveda refers not only to the marriage of Surya and Suryaa, the
divine prototype mentioned above by way of introduction, but also to the
authority of various deities who bless it. In a similar way, Srivaisnavas appeal to
Antal’s stanzas. These have scriptural authority, because they belong to the
Nalayiradivyaprabandham. Antal appeals to the authority of the deities and the
power of sacred mantras: “I had a dream O sister! Indra and the hordes of
celestials came. They approved the match and chanted Mantras.” Marriage is a
5
major topic, too, in secondary Hindu scriptures (such as the Grhyasutras,

Dharmasutras, and Dharmasastras) along with sectarian ones.
Because marriage is a cultural creation, society must maintain it carefully.
And because its main purpose, at least until the modern period in most
industrialized countries, has been responsible reproduction (which involves not
only social control but also self discipline) and bringing children to maturity
(which involves altruism), marriage has been buttressed by culturally endorsed
incentives.
Hindus, for instance, refer to four goals of life (purusarthas): duty and
ritual (dharma), livelihood (artha), pleasure and progeny (kama) and liberation
(moksa). They need marriage to fulfill the first three. Some scriptural passages
place dharma first in the list of reasons for marriage. They argue that it is the very
pillar of the householder stage of life, of the other stages, and therefore of dharma
itself. (Dharma is a Sanskrit word that is often used for religion but with
connotations of order, ritual, and duty in the sense of that which supports family
life, society, and even the cosmos.)
The incentive of fulfilling dharma as the foundational goal of life is more
specific for Hindu men, who must pay back three debts during the householder
stage. They must repay the rsis by reciting the Vedas. They must repay the
deities, too, by performing rituals before the sacred fire (homa). Because men
have to do these together with their wives, they must first marry. A married
couple is called, therefore, dampati (this connotes husband and wife who fulfill
the rituals), and wives are called sahadharminis (those who perform dharma,
especially the Vedic rituals, together with their husbands etc.18 In both the
Rgvedic wedding hymn and Antal’s dream one, for instance, the weddings are
performed with the involvement of Agni, the personification of the sacred fire, or
the ritual fire itself. Men must repay their debts to the ancestors, moreover, by
marrying and having children. In one famous story, an ascetic has a vision of his
ancestors being tormented in hell; because he has not married and continued the
lineage, he is depriving them of the ancestral offerings that would otherwise
sustain them.
As with other religious traditions, Hinduism recognized that extra cultural
effort was needed to make men take marriage seriously. That was because
marriage presented men with some potentially unattractive features, including the
prohibition on sex outside of marriage and all the hard work to provide for their
families. Scriptural Hinduism based the very definition of masculinity on
marriage and fatherhood, therefore, thus promoting the link between fathers and
sons, who were more like mothers and sons. According to the Satapatha-
brahmana,19 men became complete by having a son through whom they would be
reborn. According to Manu, “Wife, self, and offspring – that is the full extend of
`man.’ Brahmins, likewise, proclaim this: `The husband, tradition says, is the
wife;’”20 “Through a son a man gains the worlds; through a son’s son he obtains
eternal life; but through the son’s grandson he attains the crest of the sun;”21 and
“The Self-existent One himself has called him `son’ (putra) because he rescues
(tra) his father from the hell named Put.”.22 Though based on a false etymology,
the link between son (putra) and hell (put) relates a man’s destiny to having a son.
6
This was reinforced by the ritual requirement for a son (or a representative if he
did not have one) to preside at his father’s cremation, which would allow the
latter a better rebirth or passage to heaven.
Because Vedic religion and subsequently North Indian Hinduism
supported a patrilocal and patrilineal social structure, parents needed sons to
provide the family with resources and protection (although Hinduism adjusted in
some regions to local traditions of cross-cousin marriage, matrilineality, and so
on). But in the wedding hymn and other accounts of marriage, the importance of
sons does not overshadow the importance of wives. Without wives, sons would be
impossible. As for the wives, they had their own vested interest in good husbands
and sons.
Eligibility of partners: Rules on eligibility are universal. This is one foundation

for creating a norm. Those in authority, at any rate, decides who is ideal. In her
wedding dream, for instance, Antal says “Indra and the hordes of celestials …
approved the match.” At the minimum, all cultures have a rule against incest, and
all cultures have defined marriages as unions between men and women (although
a few have allowed exceptions to this norm as long as the reproductive system for
the group is not disturbed). Because elite Hindu marriage was invariably
associated with having children and maintaining dharma, it assumed unions
between men and women, a point that they could have supported by the divine
prototypes of marriages between gods and goddesses. Manu makes this
assumption explicit: "Women were created to bear children, and men to extend
the line; therefore, scriptures have prescribed that the Law is to be carried out in
common with the wife.”23
Other Hindu rules for eligibility fall within the category of variables. They
include avoiding consanguinity to a specific degree (such as forbidding marriage
to second cousins and beyond), marrying within caste, subcaste, and – in the case
of Brahmins – the right gotra. Hindus sometimes define eligibility on linguistic,
regional, or sectarian identities. In addition, Hindu scriptures dwell at some length
on the desirable characteristics for husbands and wives (intelligence, good family,
good character, good health, wealth and so forth).24 The higher the caste,
generally speaking, the more rules for eligibility.
Mutual affection and companionship: Many people today, especially in

Western countries, assume that the purpose of marriage is to celebrate the love
between two people. But comparative studies show that many societies prefer
arranged marriages and all acknowledge that the primary purpose is having
children and raising them in the best context. So it was with elite Hindu
marriages. They were arranged, although love or gandharva marriage was
recognized as one of eight legitimate types in the Dharmasastras. Fathers or other
male members of the family usually did the arranging25 with major input from the
senior women. Only if the elders had found no one after three years could young
women find their own (as in the famous case of Savitri. Love and companionship,
though secondary in this scheme, were nevertheless important enough to be
encouraged in the wedding ritual. In one part of the Rgvedic hymn about Soma’s
7
wedding to Suryaa, (which preceded that of Surya to Suryaa), Soma takes hold of
his bride’s hand and says “I take thy hand for prosperity, for ... love ."26
Similarly, in our Rgvedic hymn: “She, in the ardour of her love, will meet me,
and I, ardently loving, will meet her.” Likewise, in many verses of her
Nacciyartirumoli, Antal sings of her passionate love of her “lord.” In some elite
circles today, however, love marriage is occurring more often.
Alliances: At the universal level, every marriage defines an alliance between a

man and a woman and between families (and the social or religious groups that
they represent). In the preferred type of Hindu marriage (kanyadana), according
to the Dharmasastras, one rule of eligibility was that women must marry at the
same status or up, although men could marry down for the second or more times.
As a result, the families of young women had to find men with equal or higher
status. This made alliances an important aspect of marriage, and alliances were
often facilitated by gift-giving. Ksatriyas and other dominant castes increased
their status by giving large gifts to the families of grooms. This was made illegal
by the Dowry Prohibition Act of 1961 and amendments to it that were passed in
1984, although it continues secretly in some circles.
Public act: Cross-culturally, marriages are public acts; they have witnesses,
including those who watch wedding processions. Music often attracts attention to
these events. The Rgvedic wedding hymn refers to a procession, for instance,
which is part of a public event: “For thee at first they escorted Suryaa with her
bridal train.” Antal provides a graphic description of the wedding’s public
dimension: “The town was decked with festoons and golden urns. Surrounded by
a thousand caparisoned elephants our lord Narayana came walking towards me;”
“Under a canopy of Areca fronds;” “Bright young ladies with lamps and sacred
urns came to greet our king of Mathura;” “Drums beat and conches blew under a
canopy of pearls on strings”; “and “took us around the town on an elephant, then
bathed us both with scented water.”
Even today the husband-to-be arrives at the village of his future wife
accompanied by a procession. The wedding itself might be performed outside the
house under an awning. After the ceremony, the groom takes his bride to his
village in a procession that is accompanied by drums and music. People turn out
to witness this spectacle, because they believe that they, too, will be blessed by
the sight of the couple. (This was considered auspicious as was the wedding event
itself and even the time chosen for it.)
Durable relationships: A central purpose of marriage, cross-culturally, has been

to facilitate durable relationships between husbands and wives. The underlying
reason is to ensure social, economic, and emotional stability first for children and
then for other members of the family. The prerequisite for a durable marriage is
parental longevity. As our Rgvedic hymn says, “Agni has given him the wife with
long life and brilliance; long-lived be he who is her husband, may he live a
hundred autumns.” Elsewhere, the wedding hymn says, "may you stay here
8
together, may you not be separated, may you compass [sic] all life (long life,
happy in your own house and playing with your sons and grandsons ...)."27
Stone is a symbol of durability. Antal says, for example, that “Our lord
and master Narayana with lotus hands … lifted my foot and stood me on the
grindstone.” Durability is best built on fidelity. The wedding hymns appeal to
both partners in this regard. One wedding ritual requires them to look up at night
to the star Arundhati, which is considered constant, being located near the pole
star. The fidelity of Hindu wives is especially important. This not surprising,
because the texts were written by men and reflect their perspective: the universal
urge of men to know that children are their own, which motivates them to offer
provisions and protection to both the children and the mothers.
Even with the utmost cultural effort to promote durable marriages, Hindu
authors have recognized, these are potentially fragile. For one thing, marriages
ultimately depend on bringing men and women together despite their obvious
differences.28 Like all other cultural creations, moreover, marriages are threatened
in times of rapid social change.
Mutual support of couples and duties toward children: Across cultures,

marriages have a primal contract at their core: women gain protection and
provisions for their children and themselves from men in exchange for fidelity
and childbearing. Bringing men and women together in marriage serves the needs
of both society as a whole and couples in particular. According to one Rgvedic
passage, for instance, “’O ye mankind! Let your object of life be one and the
same, let your hearts be equal (in feeling) and let your minds be united together so
that there may be an excellent common status of life for all.”29
Intergenerational cycle: Some modern societies have developed welfare systems

that care for the aged; in most societies, though, parents must rely on their
children. This is why scriptures contain many admonitions to care for aged
parents. In Hinduism, the lawgiver Daksa says that "parents … are to be
maintained.” This idea is repeated in many texts such as that of Manu: “A mother,
father, wife, or son ought never to be abandoned….”30
Cross-culturally, universals and nearly universals account for most norms. But
norms have never accounted for the variety actually found in human cultures.
We would explain Hindu variety partly by the fact that Hindu scriptures
look beyond the ideal and explore the difficulties of marriage. The difficulties of
marriage from the perspective of women is expressed in their folksongs and
jokes.31 Of great interest to us is a distinction drawn in Hindu theology between
what the deities do and what they say they do. Pious Hindus are supposed to do
what they said, which is noble, as distinct from what they did, which did not
always measure up. Take the example of Rama and Sita. They were supposed to
be the ideal divine couple because of their lifelong fidelity. But they experienced
marital discord, because Rama had to deal with the charge that she had been
unfaithful. Or consider the example of Lord Krsna, who undermines his union
9
with Radha by having promiscuous relations with the other cowherd young
women (gopis). These have been less attractive models for the new generation of
Hindus, who have turned instead to Siva and Parvati as models not only of
conjugal fidelity but also of conjugal happiness. Siva is an indulgent husband. To
entertain Parvati, he even performs — once every month at Chidambaram — his
cosmic tandava dance in front of her. And as he does so, all the sins of the world
are destroyed!
Marriage varies cross-culturally. Most societies have used the freedom
latent in culture to adapt marriage to new circumstances but without destroying
the essential roles that are defined by its universal and nearly universal features.
Although Hindu scriptures define a universal ideal of marriage, they also
recognize that marriage is extremely important to the well-being of every
particular community. That is why they accept local customs as variations upon a
theme.
Hinduism has supported patrilineal, matrilineal, and cross-cousin marriage
systems – even though patrilineality lies at the heart of Sanskritic scriptures. And
although monogamy is the ideal, polygamy is common in some communities. As
good scholars, Hindu authors have a penchant for noticing and classifying diverse
customs of which there are many due to the presence of linguistic, ethnic, and
religious groups and the presence of economies that range from hunting and
gathering to international trade. Scriptures dating from circa 300 BCE refer to
eight kinds of marriage and arrange them in the order of status (from a Brahmin
perspective). They divide these eight into two groups of four each. The first four
are united by the gift of the girl (kanyadana). The other four include belong to a
miscellaneous category of marriages by brideprice, mutual love, abduction, and
rape. 32
Modern Hindus have reformed some of the variable features of marriage
to improve the status of women. The institution is clearly changing to
accommodate those who live in urban, egalitarian, and global conditions.
1 Rgveda X.85:31-41 in A.C. Bose, Hymns from the Vedas (Bombay: Asia
Publishing House, 1966) 135-137. We have taken the liberty of altering the
format. We have also removed all diacritical marks from quotations in this essay.
2 Rgveda X.85. The bride had three prior (symbolic) marriages with three gods –
Soma, Gandharva, and Agni - who had protected her in birth, childhood, and
now, at the time of marriage, respectively.
3 Kalidada, Raghuvamsa 1.1.

4
5 Srirama Bharati, The Sacred Book of Four Thousand: Nalayira Divya

Prabandham Rendered in English with Tamil Original (Chennai: Sri Sadagopan
Tirunarayanaswami Divya Prabandha Pathasala, 2000) 112-114.
10
6 Hari Dev Kohl, Hinduism and Divorce: From Dharmasastras to Statutory Law–
a Critical Study vol.1 (Delhi: Decent Books, 2000) 114.
7 Katherine K. Young, “The Institution of Marriage: Mediation of Nature and

Culture in Cross-Cultural Perspective.” Paper delivered at the Illuminating
Marriage Conference. Kananaskis, Alberta, 2005.
8 Kohl 2000, 112.
9 Manu 9:28. Patrick Olivelle, trans. The Law Code of Manu (Oxford: Oxford
University Press, 2004) 157.
10 The classical paradigm for men included four stages: studying (brahmacarya);
maintaining households (grhastya); partially withdrawing (vanaprasthya); and
wandering as ascetics (samnyasa). The traditional paradigm for women included
maidenhood, wifehood, and should the husband die first, widowhood or (very
rarely, sati, self-immolation). These gender distinctions have changed
dramatically in the modern period, as women have regained the right to religious
knowledge of Vedic lore and rituals, to asceticism independent of the household,
and to improved status by eliminating the view that widowhood is inauspicious
and by establishing laws that forbid sati.
11 Manu 3:77 Olivelle 49.
12 See Susan G.E. Frayser, Varieties of Sexual Experience: An Anthropological

Perspective on Human Sexuality (New Haven, CT: HRAS Press, 1985); G.
Robina Quale, A History of Marriage Systems (New York: Greenwood Press,
1988), and Edit Turner and Pamela R. Frese, “Marriage,” in Mircea Eliade, ed.,
Encyclopedia of Religon, vol. 9 ( New York: Macmillan, 1987).
13 “The variables of marriage are due partly to the freedom conferred by human
nature, which makes adaptation possible. Marriage is constituted by the
interaction of its universal features and its particular circumstances (the
environment, new technologies, population increases or decreases, migrations,
and so on). Analyses of specific societal types with distinctive economic features
(such as hunting and gathering, horticulture, agriculture, pastoralism, mixed
economy, trade, and industry) reveal the integration of these universals and
particulars … [Robina] Quale rightly points out that to understand how a marriage
11
system operates, it is necessary to examine its context as well as its contents. In

other words, the universal features of marriage are embedded in complex
ecosystems” (Young, 2005).
14 Every culture’s definition of marriage contains not only universal and nearly
universal features but also variable ones. “From one perspective, the variables
make its definition distinctive. But focusing on the definition of marriage in any
one society makes it hard to know which aspects are distinctive, or local, and
which are universal or nearly universal. Patterns emerge only when two or more
societies are compared. When only one society is considered, in other words, the
variables can mask the universals. It could be argued that focusing on universals
and nearly universals produces the methodological problem of èssentialism.’ But
that is a false problem for three reasons. First, there really is an empirical basis
for the existence of these features. Second, using inductive reason to discern
patterns is a fundamental characteristic of scholarship. And third, any
phenomenon so common as to be universal or nearly universal surely reveals
something basic in the human condition. Katherine K. Young and Paul
Nathanson, “The Future of an Experiment.” In Divorcing Marriage (Montreal:
McGill Queen’s University Press for the Marriage Institute, 2004) 46.
15 Srirama Bharati, The Sacred Book of Four Thousand: Nalayira Divya

Prabandham Rendered in English with Tamil Original (Chennai: Sri Sadagopan
Tirunarayanaswami Divya Prabandha Pathasala, 2000) 112-114.
16 Linda J. Waite and Maggie Gallagher, The Case for Marriage (New York:
Doubleday, 2000).
17 P.V. Kane, History of Dharmasastra (Ancient and Medieaval Religious and

Civil Law: vol.2 (Poona: Bhandarkar Oriental Research Institute, 1974) 527.
.
18 Rgveda V.3.2 and V. 28.3 also refer to co-operation between husbands and
wives in worship (Kane II: 429). Alternatives to this requirement do exist; if his
wife dies, a husband may represent her presence by an image.
19 Satapatha-brahmana V.2.1.10.
20 Manu 9: 45-46. Olivelle 158.
12
21 Manu 9:137. Olivelle 165.
22 Manu 9:138 Olivelle 165.
23 Manu 9: 96. Olivelle 161.
24 See Kane II: 431-434 for textual references and variations in the order of what
is desired.
25 Kane II: 501ff.
26 Kane II: 526.
27 Rgveda X.85.24 in Kane II: 526.
28 Weddings were considered particularly dangerous transitions, which is why

they involved many rituals, some lasting several days.
29 Rgveda X.191.4 cited in Kohl 2000, ***
30 Manu 8: 389. Olivelle 151.
31 See Lindsey Harlan and Paul B. Courtright, “Introduction: On Hindu Marriage

and Its Margins” and Ann Grodzins Gold, “the `Jungli Rani’ and Other Troubled
Wives in Rajasthani Oral Traditions,” in From the Margins of Hindu Marriage:
Essays on Gender, Religion, and Culture edited by Lindsey Harlan and Paul B.
Courtright (New York: Oxford University Press, 1995) 3-18; 119-136.
32 Kane II: 516-526.
13
Exhibit C
Loren Dean Marks October 30, 2009
Washington, DC
Page 1
1 UNITED STATES DISTRICT COURT
3 KRISTIN M. PERRY, et al., )
4 Plaintiffs, )
5 v. ) No. 09-CV-2292 VRW
6 ARNOLD SCHWARZENEGGER, in )
7 his official capacity as )
8 Governor of California, )
9 et al., )
10 Defendants. )
11
12 Washington, D.C.
13 Friday, October 30, 2009
14 Deposition of LOREN DEAN MARKS, called for
15 examination by counsel for Plaintiffs in the
16 above-entitled matter, the witness being duly sworn
17 by CHERYL A. LORD, a Notary Public in and for the
18 District of Columbia, taken at the offices of COOPER
19 & KIRK PLLC, 1523 New Hampshire Avenue N.W.,
20 Washington, D.C., at 9:31 a.m., and the proceedings
21 being taken down by Stenotype by CHERYL A. LORD, RPR,
22 CRR.
Alderson Reporting Company

1-800-FOR-DEPO
Washington, DC
Page 14 Page 16
1 terminal -- not just your terminal degree, but where 1 difference.
2 you receive your degrees. Nothing more complex than 2 Q. What fields of research do family science
3 that. 3 or family studies draw upon?
4 Q. I note that your major at -- your 4 A. Psychology, sociology, and of course
5 undergraduate major at Brigham Young was family 5 family studies as well. You know, like -- like any
6 sciences, and your major in your master's program was 6 discipline, we borrow a little bit here and there
7 family sciences and human development. 7 from others, history, demography, et cetera, but
8 What does the study of family sciences 8 primarily psychology and sociology.
9 entail? 9 Q. Turning now -- oh, before I leave
10 A. There -- there are a number different 10 education, can -- how many years were you at Brigham
11 aims. The primary aim is to -- to do our best to -- 11 Young as an undergraduate?
12 to understand -- and -- and these are my terms -- to 12 A. I began at Brigham Young in January of
13 figure out why some families struggle and why some 13 1994, I believe, 1994, and finished up there in 1997.
14 families succeed. In -- in laymen's terms, that's 14 I applied, admitted -- and was admitted to the M.S.
15 the way that I'd put it. 15 program, which you see here. And that took me just
16 Q. What would you define as -- or how would 16 about exactly 2 calendar years, so January 1994
17 the field of family sciences define success as a 17 through early July of 1999.
18 family? 18 Q. So 2 years as a graduate student and 3 and
19 A. There are 2 different units of analysis 19 a half years or thereabouts as an undergraduate
20 that are typically looked at. 20 student?
21 One would be individuals, and if 21 A. Yeah, about 3 and a half.
22 individuals are flourishing, doing well 22 Q. Turning now to the employment section.
Page 15 Page 17
1 developmentally. Also, we look at the marital level. 1 A. M-hm.
2 I might say 3 levels instead of 2. 2 Q. In what position are you currently
3 The individual level, you know, is the 3 employed?
4 individual doing well. Number 2, is the marriage 4 A. I'm the Kathyrn Norwood and Claude Fussel
5 doing well, has it ended in divorce, are they still 5 alumni professor in the college of agriculture,
6 married, are they reporting that they're satisfied 6 specifically within the school of human ecology in
7 that they're happy. And at the family level are the 7 the division of family, child, and consumer sciences.
8 relationships strong, encouraging, nurturing. 8 I know that's a mouthful, but --
9 There -- there are many, many, many 9 Q. Is the Kathryn Norwood and Claude Fussel
10 different ways that each of those are measured in 10 alumni professorship -- is that reserved for people
11 different studies by different individuals, but 11 in a particular field or from a particular
12 that's -- that's the bottom line. 12 background?
13 Q. Your major at the University of Delaware 13 A. You know, that's a good question, Matt,
14 was family studies? 14 and I don't know if it is or not. I just -- I
15 A. M-hm. 15 actually haven't even met the donors yet. I just
16 Q. Is that different in any way from family 16 received it a month ago plus or minus or so.
17 sciences? 17 But it's -- I will tell you that it's a
18 A. Not significantly. 18 teaching -- a teaching-based professorship at the
19 I think it's a terminology difference. 19 research -- research excellence was also factored in,
20 Sometimes it's called family studies, sometimes 20 but that was the merit basis, teaching and -- and
21 family science, sometimes family sciences. 21 research.
22 But there's -- there's not a significant 22 Q. Unfortunately, you won't meet Mrs. Norwood
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1 One of the -- let's see, it's been a 1 Q. When you addressed it last week, what --
2 little while since I taught 7051, but typically in 2 what texts did you use?
3 that course, which I taught a couple of times I 3 A. When it was addressed last week, I had a
4 think, I required 9 texts, 9 texts or books, several 4 student give a presentation based on her review of
5 journal articles that were largely up to the 5 literature to the class.
6 discretion of the students. They got to pick those. 6 Q. Do you recall what literature she
7 One of the books that was required reading 7 reviewed?
8 was Judith Stacey's In the Name of the Family, which 8 A. She -- she used the Patterson review that
9 addresses same-sex -- I don't know how much depth it 9 I mentioned earlier. She -- she also referenced --
10 goes into in terms of parenting, but it does address 10 which did she use? -- Patterson actually has a
11 same-sex issues at some length. 11 number of -- a number of studies in this area as
12 We also read chapters from different 12 you're probably aware. I believe the Wain- -- some
13 handbooks that addressed same-sex issues in 7051. 13 of the Wainright literature may have been used and
14 Q. Do you recall the names, titles of any of 14 also some of the Golombok studies from England.
15 those handbooks? 15 The presentation was a few minutes, not
16 A. Charlotte Patterson's Journal of Marriage 16 comprehensive, but a research paper that she
17 and Family Review in 2000. I think it's the 17 selected.
18 November -- not that that's important, but November 18 Q. Would you say that you yourself are
19 2000 Journal of Marriage and Family. She has a 19 familiar with the research of Patterson, Golombok,
20 review in that issue that we -- that we read. 20 Wainright?
21 I taught the class twice, once before and 21 A. Yes.
22 once after the 2004 handbook that I mentioned earlier 22 Q. In your -- in the course of your teaching
Page 23 Page 25
1 came out. I can't -- I can't remember who authored 1 emerging lifestyles in 2002 at the University of
2 the same-sex chapter or chapters in that book, but 2 Delaware, did you in the context of that class
3 that was a book that we would refer to pretty 3 address parenting and marriage in the lesbian and gay
4 regularly. 4 context?
5 There may well be others that -- '03, '05, 5 A. We did.
6 taught several classes since then, I'm a little -- 6 Q. Did you reference the same texts as you
7 I'm a little fuzzy, but certainly those I'd stand by. 7 use now?
8 Q. Have you taught in any of your classes 8 A. Many of -- many of the ones that we use
9 since 2005 any issues relating to either marriage or 9 now were unavailable then. And I was -- I was less
10 parenting as among lesbians or -- and gay men? 10 familiar with the literature then as well.
11 A. Since 2005? 11 As -- as a result, I did bring in -- we
12 And you're talking about undergraduate and 12 had a guest expert lecturer come in to help fill in
13 graduate classes? 13 that gap, since I had a working knowledge of the
14 Q. That's correct. 14 literature, at that point, but thought it was
15 A. It comes up and is addressed at some level 15 important to have -- have an expert come in.
16 in just about every -- every class that I teach. 16 Q. Who was the guest expert?
17 I'm trying to think if there's -- the 17 A. Tara Woolfolk.
18 easier answer would be, are there any classes 18 When I say, guest expert, she knew a lot
19 where -- where I do not address it at some level. 19 more than me, you know, at that point in time about
20 2065 is a course -- although it says here, 20 the literature, not nationally renowned.
21 2008, I'm currently teaching that. We addressed it 21 Q. Since emerging lifestyles in 2002, what
22 in that course just last week. 22 new texts have you added to your teachings of these
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1 primarily considered in connection with preparing the 1 I took a close look at again. There certainly was a
2 report? 2 quality factor.
3 MR. THOMPSON: Objection, mischaracterizes 3 Q. And the sources that are not listed here
4 the testimony, and objection, asked and answered. 4 presumably are of lesser quality?
5 A. These -- these materials that are listed 5 A. Well, there are some that are -- I'm sure
6 here were considered in formulation of my expert 6 there are some very high-quality studies generally
7 report. But again, they're -- they're in no way 7 that aren't on here, but, yes, of the ones that I've
8 exclusive. 8 considered, these are -- these are high-quality
9 BY MR. McGILL: 9 studies for the most part.
10 Q. How did you distinguish between the 10 Q. What are your primary areas of research
11 references to list and the references not to list? 11 interest?
12 A. That's a good question. 12 A. My primary research interests are faith
13 And in the case -- in the case of this 13 and families and African American families. I spend
14 expert report, some of my judgments were based on not 14 quite a bit of time in both of those.
15 just what studies were available to me, but I wanted 15 I do dabble in, you know, some other
16 to focus on the highest-quality studies available. 16 areas, but those are focal.
17 And I believe that most of the studies, most of the 17 Q. How does your research on faith and
18 work that you'll find cited here is -- is of high 18 families and strong African American families relate
19 quality, Nobel laureates. 19 to your opinions and your report in this case?
20 Akerlof as an economist, several pieces by 20 MR. THOMPSON: Objection, vague.
21 Paul Amato, and others, who are premier. So among 21 Go ahead.
22 the available sources, I tried to select from -- from 22 A. With -- with maybe one, 2 contextualizing
Page 43 Page 45
1 the best. 1 exceptions, I don't believe I cite my own work
2 MR. THOMPSON: We've been going about an 2 directly in this -- this expert report.
3 hour. We'd like to take a break. 3 So in terms of my direct impact, minimal
4 MR. McGILL: As you wish. 4 to -- to moderate, although I -- although those are 2
5 MR. THOMPSON: Okay. 5 focal areas of my -- there -- there are probably a
6 THE VIDEOGRAPHER: This ends videotape 6 hundred different subdisciplines within family
7 number 1. The time is now 10:27 AM. 7 studies that I'm responsible for in some -- some
8 (Recess.) 8 level as a teacher that I cover, that I read, so --
9 THE VIDEOGRAPHER: We're now back on the 9 BY MR. McGILL:
10 record. 10 Q. Is parenting by gay men and lesbians among
11 This is the beginning of videotape number 11 the hundreds of subdisciplines that you're
12 2. The time is now 10:40 AM. You may proceed. 12 responsible for?
13 BY MR. McGILL: 13 A. Yes.
14 Q. So when we left off, Professor Marks, 14 Q. You're a peer reviewer on several
15 the -- just to close the loop on where we were, you 15 journals.
16 said, do I understand you correctly to say that you 16 Correct?
17 distinguished between the materials that you chose to 17 A. I am.
18 list on your index of materials considered and those 18 Q. And what do you do as a peer reviewer?
19 you chose not to list by listing only those materials 19 A. As a peer reviewer, the editor of a
20 of the highest quality on your index? 20 journal will send -- will send you a study, usually a
21 A. The sources that I list I believe are of 21 study that is within your interest area, you know,
22 high quality, but -- and indicate ones in most cases 22 your specialty area. And they will ask -- ask you to
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1 carefully read, respond to issues that -- that are 1 that's rarely hit.
2 raised. 2 You have your biases. I do. Anybody who
3 In my instance, I have a methods specialty 3 is reviewing carries those with them as well. They
4 as well, and sometimes I'm asked to give some -- some 4 should try to check them, but whether they do or not,
5 input on the research method that's used. 5 I don't know for sure.
6 Q. Why is peer reviewing important? 6 Q. What are your biases?
7 A. Peer reviewing is an effort to maintain 7 A. That's a -- that's a good question.
8 minimal standards in the field. 8 Can you -- can you be a little bit more
9 Q. Does work that is peer-reviewed presumably 9 specific in terms of a given area?
10 meet minimal standards in the field? 10 Biases can be broad certainly.
11 A. It depends on the journal. 11 Q. You said to me that some researchers have
12 There -- there are a variety -- variety of 12 their biases and you have yours. And I'm just really
13 journals. There's also a great degree of 13 asking you to elaborate on that statement.
14 subjectivity that comes into play in terms of -- in 14 A. One of -- one of my biases is that
15 terms of reviewers as most within the field will tell 15 research should be very, very thoroughly documented,
16 you. 16 referenced, even meticulously so, including reports.
17 Social scientists are not immune from 17 I think that many within my field would say that
18 cultural or biases -- cultural opinions, et cetera. 18 having an appreciation of qualitative methods can be
19 Q. Now, you mentioned before -- I just want 19 a bias as well.
20 to circle back to your statement that you have a 20 Q. Any others that you can think of?
21 specialty in methodology. 21 A. I think that -- that a bias I have
22 Could you elaborate on that? 22 relative to many in my field is an optimism.
Page 47 Page 49
1 A. My focus in terms of methods is 1 What I mean by that with specific
2 qualitative, and there are 2 broad types of methods 2 reference to my discipline is, I -- I prefer to look
3 that are used, qualitative and quantitative. 3 at strengths over weaknesses or pathologies as -- as
4 Quantitative tends to deal with 4 a general rule.
5 statistics, qualitative with nonnumerical data. Any- 5 Q. Do you have -- have you published or do
6 -- anyone in my field -- just about anyone deals with 6 you have in press any writings other than those
7 both. 7 listed on your CV?
8 Q. And your work with strong African American 8 A. I don't believe so, Mr. McGill.
9 families exemplifies that qualitative method of 9 As I said earlier, and this is -- this is
10 research? 10 fairly recent. With the exception that we addressed
11 A. It does. 11 earlier, this should be accurate.
12 Q. And with respect to your work as a peer 12 Q. Are there any publications on that list
13 review, you mentioned that authors of social science 13 that you no longer believe represent high-quality
14 are not immune from -- from bias. 14 social science?
15 What do peer reviewers do to ferret out 15 A. On -- on the list that I --
16 bias? 16 Q. Of your own publications.
17 A. That's a good question, Mr. McGill. I 17 A. Oh, of my own.
18 don't have an empirical response to that question. 18 Q. Correct.
19 I think it's -- it's cause for speculation 19 A. I -- I am, what, in my eighth year as a
20 on my part. My professional opinion would be that 20 professor.
21 you don't, that there's a scientific objective, you 21 One of my biases is that we should aim for
22 know, an ideal of objectivity, but it's a target 22 the gold standard. While I've had research that's
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1 A. In the areas of faith and families and 1 asked -- which was asked previously.
2 specifically strong African American families, yes, 2 Quantitative methods like -- meet precise
3 yes, I would. 3 concepts like specific child outcomes. You mentioned
4 Q. Are you an expert in child adjustment? 4 I believe earlier child adjustment.
5 MR. THOMPSON: Objection, vague. 5 Qualitative research tends to be a little
6 A. Child adjustment is one of -- again one of 6 bit more holistic. Most of the research I've done
7 the many, many areas that I'm responsible for knowing 7 that would deal with relationships between adults
8 something about. 8 and -- and children would focus more on the process
9 Is it one of my focal interest areas? 9 and the interaction that takes place as opposed to
10 No, it is not. 10 specific outcomes.
11 BY MR. McGILL: 11 Most of my field would view that as a
12 Q. But you still consider yourself to be an 12 difference in methodology and focus.
13 expert in child adjustment? 13 Q. So you study parenting processes more than
14 A. By the standards of my field, I don't 14 parenting structures?
15 study the specific concept of child adjustment. I do 15 A. I've studied both.
16 study child outcomes at some length, and family 16 Q. Do you have an opinion on what causes
17 outcomes. 17 better child outcomes as between processes and
18 Q. And you would not have contended in -- 18 structure?
19 earlier than your date of being a tenured professor 19 MR. THOMPSON: Objection, vague.
20 that you were an expert in any field, would you? 20 A. That, then, is a central question in the
21 MR. THOMPSON: Objection, mischaracterizes 21 social sciences.
22 the testimony. 22 Again, as you're probably aware, I would
Page 55 Page 57
1 A. In -- in the content areas that I 1 based on my reading of the empirical literature say
2 mentioned, by the field standard, I think tenure as I 2 that both play an important role. Many -- many
3 mentioned earlier is as good of a bar as any. 3 within the social sciences are -- tend to be from the
4 BY MR. McGILL: 4 more traditional set -- argue very hard for
5 Q. Prior to your engagement as an expert in 5 structure. Some argue for processes.
6 this case, had you ever undertaken research on the 6 I think both are very, very important, and
7 effective family structure on child outcomes? 7 it's difficult to -- to disentangle the 2. The
8 A. Yes. 8 exception that I would draw would be 2-parent married
9 Q. When? 9 biological family.
10 A. I am -- at the outset, I was a fathering 10 That -- that structure empirically stands
11 scholar. My research interests transformed a little 11 out as unique in the empirical work that I've read.
12 bit over time from fathering to family. 12 BY MR. McGILL:
13 Much of the fathering literature links 13 Q. And in the empirical work that you have
14 fathers to children's outcomes, so from the very -- 14 read, is it that the -- that family structure
15 the very inception of -- my inception into the 15 correlates to good child outcomes, or is it that
16 research world of family studies, it was child 16 itself causes good child outcomes?
17 outcome-related, father-child outcomes. 17 MR. THOMPSON: Objection, vague.
18 Q. Have you published any original research 18 A. The research is almost always in any --
19 concerning the effect of family structure on 19 any area of social science correlational and not
20 childhood outcomes? 20 causational, and that's true across subdiscipline and
21 A. If I can go back to the qualitative, 21 topic. There -- to rephrase it, there are many, many
22 quantitative question for just a moment, which was 22 significant unanswered questions in social sciences
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1 cause of good adjustment outcomes? 1 correlation. Cause and effect is tough.
2 A. I know of no empirical research in the 2 BY MR. McGILL:
3 social sciences that to the satisfaction of the field 3 Q. Are you aware of any study that has
4 has been able to say, this is causal rather than 4 compared biological married parents -- and I'm using
5 correlational. That is true for biology and many 5 biological as you have defined it here.
6 other factors. 6 A. Intact.
7 Social science generally does not -- does 7 Go ahead.
8 not have the rigor and the strength to make causal 8 Q. And that, just so we're clear: And that
9 statements. 9 is as -- that is how you say the researchers you rely
10 Q. Are you saying that social science could 10 upon define the term?
11 not even say that parenting skills, high parenting 11 A. Yes.
12 skills cause good child outcomes? 12 Q. So is there any study of which you're
13 MR. THOMPSON: Objection, vague. 13 aware that compares biological parents to -- who are
14 A. There -- there are 3 -- there are 3 14 married and have similar money, contact, warmth,
15 necessary components to -- to make a causal statement 15 education with adopted children who have -- with
16 that are -- that are usually associated in the social 16 married parents similar money, contact, warmth,
17 sciences -- or in I should say science. 17 education?
18 One is that the cause -- and we'll use 18 A. I follow you.
19 parenting skills. Cause has to precede the effect. 19 The adoption literature is nascent.
20 That's kind of the low-hanging fruit and obvious. 20 It's -- it's very, very new from a social science
21 Another is that you have to establish some 21 perspective.
22 kind of a link between the 2, which we often refer to 22 The most recent study that I've read that
Page 83 Page 85
1 as correlation. 1 looks at adoption issues and, you know, the study --
2 A third is that you have to rule out all 2 a study would fit the bill that you just described, a
3 other alternative explanations. That would be called 3 study by Wilcox and Wilson says that that -- that
4 from a scientific vantage a purely experimental 4 that field is embryonic. That's their word, not
5 design, and we cannot execute that in the social 5 mine. It's brand-new.
6 sciences because of ethical considerations. 6 Coming back to directly respond to your
7 You can't raise a kid in a lab, and so 7 question, a handful at best I would say -- that I'm
8 even though we can correlate parenting skills perhaps 8 aware of, including one by Lansford and colleagues,
9 with better outcomes, we can never -- "never" is a 9 2001 Journal of Marriage and Family, maybe a couple
10 strong word, but it's one that I use cautiously. 10 of others.
11 It's very difficult to make any causal 11 That's -- that's a tough -- it's a tough
12 statement about child outcomes, which is the topic of 12 study to pull off, especially meeting the standards
13 my expert report because of that third one. 13 that I discussed earlier.
14 1 and 2, we can get in place. Third, we 14 Q. Do you think parenting processes are
15 cannot, not for biology, not -- not for -- 15 important?
16 BY MR. McGILL: 16 A. I do. I think process is -- is very
17 Q. Have -- 17 important.
18 MR. THOMPSON: Let him finish. 18 As I said earlier, I also think that
19 Not for biology what? 19 structure is important in -- at least in the case of,
20 A. And not for most other variables that I 20 you know, intact families as we defined them earlier.
21 mentioned. 21 Q. And in your opinion, it is simply not
22 You can look at them, study them, and get 22 known whether processes as opposed to structure
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1 Well, I've listed here that that was drawn 1 although in several of the studies that we've pulled
2 from Popenoe. 2 out, they mention that they include in -- different
3 Q. Is your reference to intact families 3 social scientists want to be -- and, you know, more
4 accurate? 4 or less inclusive or claiming the definition of who
5 A. May -- may include adopted as well, but 5 they include in the study. We've seen in several of
6 memory doesn't -- doesn't serve me there. 6 these cases that they decide to include adoptive
7 Q. Onward we go. 7 families, which are a small, small minority in the
8 Paragraph 37. 8 general population, a small minority. I don't know
9 A. M-hm. 9 the exact figures.
10 Q. Here you quote at some length from 10 But when you're dealing as these
11 Lorraine Blackmon's review: For African American 11 researchers are with broad national-based samples,
12 children, parental marriage produces important 12 they are as I mentioned earlier, sometimes painting
13 benefits. 13 with a broad brush.
14 And then it ends by saying: Marriage 14 If some of these studies we're talking
15 itself appears to be contributing strongly to better 15 about, they use the term biological or intact and
16 outcomes for black children. 16 they throw in some -- some adopted studies, we would
17 And then you drop a footnote, footnote 59. 17 call that noise at some level, that there's a little
18 And you state there that: The researchers 18 bit of -- there's a little bit of muddying of
19 are again referring to marriage between the 19 concepts, but unless we -- unless we know that
20 biological father and the mother. 20 conceptually, they're including so many adoptive
21 Are you sure that's the case? 21 families, I find that very hard to believe to
22 A. Well, as we've seen in a few of these 22 overthrow the general conclusion of a study based on
Page 183 Page 185

1 studies, they include -- some of them include intact, 1 thousands and thousands of people.
2 adoptive families under -- under biological. That 2 It's --
3 certainly is possible if not probable in some of 3 Q. Well, but --
4 these studies cited by Blackmon, since it's a review 4 A. Well, it's -- it's conceptually an
5 where they cite -- they claimed to cite 120 or so. 5 inconvenience to -- to have a nonclear-cut
6 In this case, I would anticipate that they 6 definition, but the points that are being made, if --
7 would probably have at least some studies. They 7 if adoptive families comprise 1 or 2 or 3 percent of
8 included a handful of adopted marriage-based families 8 the subgroup of what they're calling intact
9 in there. 9 biological families, we're talking about a study
10 Q. Do you wish to revise your statement that 10 that's still 97 percent pure.
11 the phrase parental marriage refers to marriage 11 It doesn't overthrow -- it makes my
12 between the biological father and mother? 12 definition, which is necessarily messy upfront, less
13 A. I think that what I would do there is say 13 convenient, less clean, but it -- you don't throw out
14 typically, conceptually, although some of the 14 the baby with the bath water because they decided to
15 studies, Johnson, et al., and others do include in 15 include a few adoptive families under the intact
16 their definition adoptive families under that 16 heading. That's ridiculous.
17 heading. 17 Further if -- if they decided to put the
18 Q. So we couldn't conclude from Blackmon's 18 intact families or the marriage-based adoptive
19 conclusion here that the benefits of marriage to -- 19 families in for whatever reason in with stepparent
20 for black children are in any way limited to 20 families, and it only accounted for a very small
21 biological parents? 21 minority of the studies in that total population,
22 A. I think that that's an overstatement, 22 it's -- it's again impure conceptually, but it
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1 Do I impose it on others? 1 Q. So that belief predates your work as a
2 I believe in cleaning up my own backyard. 2 social scientist?
3 Q. And for clarity sake, the -- the dogma 3 A. Yes.
4 that you referred to just in your last response, 4 MR. McGILL: We'll take a 1- , 2-minute
5 that's known as the law of chastity. 5 break and find out if there are any last questions.
6 Correct? 6 MR. THOMPSON: Sound good.
7 A. That is correct. 7 THE VIDEOGRAPHER: We're going off the
8 Q. Did your religious convictions impact your 8 record. The time is now 6:09 PM.
9 opinion that the ideal family structure is marriage 9 (Recess.)
10 between man and a woman and a child biologically 10 THE VIDEOGRAPHER: The time is now 6:13
11 related to each in any way? 11 PM. You may proceed.
12 A. My exposure to -- to that -- that dogma 12 BY MR. McGILL:
13 I'm sure is one of many factors that -- that ran 13 Q. Dr. Marks, earlier in the deposition
14 around in my head. 14 today, we addressed paragraph 15 of your report,
15 But again I was called as an expert 15 which is marked as exhibit 2.
16 witness in the same sense that I wouldn't come in 16 A. Okay.
17 here and make my argument based on what's stated in 17 Q. Can you go back to that.
18 the family proclamation to the world. I took that 18 A. I'll try -- I'll try and get there
19 same approach in my scholarly -- my scholarly work. 19 quickly. Okay.
20 I think I've addressed again and again 20 Q. And addressing the last sentence: Wilcox
21 that I acknowledge potential for bias and that that 21 and colleagues state that teens living with both
22 makes challenge fair play. However, please remember 22 biological parents are significantly less likely to
Page 275 Page 277

1 my earlier statement that I also have taken upon me 1 illicit drugs alcohol and tobacco.
2 the burden of challenge. This is -- you know, 2 And you said that on reflection, having
3 scholarship is about strengths and challenges, not 3 reviewed with me the Johnson study, you would delete
4 just dogmatically presenting one. 4 the word biological.
5 Q. When is the first time you held the belief 5 A. Said, delete.
6 that the ideal family structure is marriage between a 6 I probably would have contextualized it
7 man and a woman and a child biologically related to 7 differently, added to it to make it accurate for the
8 each? 8 1996 study and more precisely consistent with 1996.
9 MR. THOMPSON: Objection, relevance. 9 Q. So you might have said, teens living with
10 A. Mr. McGill, I don't know. I don't know 10 both biological and adoptive families?
11 how to answer that question. 11 A. Including adoptive, yeah.
12 BY MR. McGILL: 12 Q. And my question, which is my very last
13 Q. Is it -- is it fair to say that you held 13 question, is, are there any other changes you would
14 that view, you held that belief before your 14 make to this report that you would -- or any words
15 engagement as an expert in this case? 15 you would like to delete before trial?
16 A. Yes. 16 A. No.
17 Q. Is it fair to say you held that belief 17 I would want to be more precise on the
18 before you received your Ph.D. degree? 18 definitions than I was in a couple of cases. It's
19 A. Yes. 19 the danger of large studies. I would want to be more
20 Q. Did you hold that belief before you 20 precise, but I stand behind the report as is.
21 graduated from college? 21 Q. Do you stand behind the -- do you
22 A. Yes. 22 recall -- excuse me -- do you recall when we went --
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1-800-FOR-DEPO
Exhibit D
David George Blankenhorn III November 3, 2009
Washington, DC
Page 1
1 UNITED STATES DISTRICT COURT
3 KRISTIN M. PERRY, et al., )
4 Plaintiffs, )
5 v. ) No. 09-CV-2292 VRW
6 ARNOLD SCHWARZENEGGER, in )
7 his official capacity as )
8 Governor of California, )
9 et al., )
10 Defendants. )
11
12 Washington, D.C.
13 Tuesday, November 3, 2009
14 Deposition of DAVID GEORGE BLANKENHORN III, called
15 for examination by counsel for Plaintiffs in the
16 above-entitled matter, the witness being duly sworn
17 by CHERYL A. LORD, a Notary Public in and for the
18 District of Columbia, taken at the offices of COOPER
19 & KIRK PLLC, 1523 New Hampshire Avenue N.W.,
20 Washington, D.C., at 9:41 a.m., and the proceedings
21 being taken down by Stenotype by CHERYL A. LORD, RPR,
22 CRR.

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1 Q. Okay. So is it fair to say, then, that 1 deinstitutionalization.
2 you don't intend to be offering opinions about what 2 I believe that those are -- are -- do not
3 the impact of allowing same-sex marriages 3 constitute the entire realm of useful knowledge when
4 specifically in California in a context that has 4 it comes to making an informed assessment, but --
5 certain laws that already apply about child rearing, 5 regarding the issue of same-sex marriage in
6 et cetera -- what that impact would be particularly 6 California, but I do believe that that -- those
7 in the state of California? 7 assessments and that way of organizing a body of
8 MR. THOMPSON: Objection, mischaracterizes 8 knowledge could potentially be useful to people
9 the testimony. 9 who -- who are making this decision.
10 Go ahead. 10 BY MR. DUSSEAULT:
11 A. Yeah. 11 Q. Okay. Would you agree that to evaluate
12 I would prefer to say what -- what I am 12 the likely impact of allowing marriage -- same-sex
13 saying rather than to have it stated that way. 13 marriage in a single state on the institution of
14 What I'm trying to do is that in human 14 marriage and whether it would lead to
15 groups, we can discern a -- we can discern the basic 15 deinstitutionalization that it is relevant to
16 contours and dimensions and purposes and social 16 consider what other practices and actions are
17 functions of an institution called marriage, and that 17 currently allowed under the laws of that state?
18 as we evaluate our future in California and also 18 A. Would I consider as a general matter that
19 possibly in other states that this understanding of 19 it would be relevant?
20 what it means to -- to -- to -- what marriage means 20 Q. Yes.
21 in the human experience is valuable. And it is a 21 A. I would consider it relevant, yes.
22 valuable contribution to the discussion to be 22 Q. You've drawn a distinction a couple times
Page 99 Page 101

1 familiar with this. 1 in your testimony about things done specifically for
2 And further that the trend in the United 2 this case versus things done over the course of your
3 States and elsewhere toward deinstitutionalization 3 career. That's certainly a fair distinction.
4 can be measured and -- and can -- can -- I don't want 4 Have you engaged in any studies or
5 to say measure. I want to say assessed and can be 5 analysis that you did specifically for the purpose of
6 evaluated by persons of goodwill with respect to the 6 offering an expert opinion in this particular
7 impact of that trend on children and societies. 7 litigation?
8 And further, I'm arguing that the advocacy 8 A. Have I undertaken a study --
9 of gay marriage is a part of that trend toward 9 Q. You can break them down if you want.
10 deinstitutionalization. And so that as people in 10 A. -- that is a study undertaken specifically
11 California and as people in any state evaluate the 11 and exclusively for the purpose of preparing this
12 topic of same-sex marriage or the possibility of 12 document?
13 changing their laws to grant the right of same-sex 13 Q. Let's say specifically, because I don't
14 couples to marry, I believe that it is valuable and 14 care if you plan to use it later, that's fine, but
15 useful to have as a context and as a foundational 15 specifically because you were hired to give an
16 basis of understanding what is the institution we're 16 opinion here, so you conducted a study.
17 talking about and in what direction is it headed in 17 A. Well, if by, study, do you mean that I
18 our nation, in -- in the world, and what are the 18 devoted some days and weeks to reading and trying to
19 likely consequences of that direction, and what is 19 organize my thoughts and trying to refresh my
20 the apparent role of the current push or the current 20 recollection about other previous work that I have
21 desire or the current campaign for same-sex marriage, 21 done, the answer is yes.
22 what role, if any, does that play in this trend of 22 Q. Okay. Anything else?
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1 A. No. 1 So for a number studies that have been
2 Q. Okay. 2 carried out by -- by the Institute for American
3 A. Not that I recall. 3 Values in -- over the past 20 years, I have a number
4 Q. Okay. And I know the word study could 4 of times been involved as, say, the principal author
5 have various meanings. I'm trying to use it as it's 5 of the report or often as the person who had the lead
6 often used in the field of sociology, and I see 6 role in conceptualizing, developing the methodology,
7 people refer to studies. 7 and so on, in -- in -- in actually carrying out the
8 Have you personally conducted any studies 8 research itself.
9 on which you're relying in forming your opinions in 9 But I -- we typically work in -- we work
10 this case? 10 in a group -- we work as groups of scholars, and if
11 MR. THOMPSON: Objection, vague. 11 you wanted to, you could look at each of our reports
12 A. I have -- as I mentioned, I have -- I have 12 that have occurred over the past 20 years, and you
13 read and re-read things. I have tried to organize my 13 can see in each report in what way my role was
14 thoughts in a way that I thought I could present them 14 described, and we've tried to be fairly clear about
15 usefully, and I've -- I've tried to refresh my memory 15 that.
16 of the body of work that I've done over the years as 16 Q. Okay. Let's turn to your -- your index of
17 it may pertain to achieving excellence in this 17 materials considered, which is at the end of exhibit
18 document. 18 1.
19 BY MR. DUSSEAULT: 19 MR. THOMPSON: Could we go off the record
20 Q. Okay. In your professional life, you 20 just a moment?
21 don't conduct studies in the sense of dealing with a 21 MR. DUSSEAULT: Sure.
22 certain number of subjects who are -- who fill out 22 (Discussion off the record.)
Page 103 Page 105

1 questionnaires, are observed, interviewed, and their 1 THE VIDEOGRAPHER: Going off the record.
2 answers and responses are gauged. We see a lot of 2 The time on the video screen is 12 o'clock and 38
3 that in some of the things that you rely on. 3 seconds.
4 I'm just trying to understand -- 4 (Discussion off the record.)
5 A. Have I personally been involved in those 5 THE VIDEOGRAPHER: Here marks the end of
6 kinds of activities? 6 videotape number 2 taken in the deposition of
7 Q. Yes. 7 Mr. David Blankenhorn III. Going off the record.
8 A. Yes, I have. 8 The time on the video screen is 12:01 and 38 seconds.
9 Q. In what role? 9 (Recess.)
10 A. Well, usually my role has been that of -- 10 THE VIDEOGRAPHER: Here begins videotape
11 of conceptualizing the topic of inquiry, of 11 number 3 taken in the deposition of Mr. David
12 recruiting the scholars to carry out the work by 12 Blankenship III -- I'm sorry -- Blankenhorn III.
13 participating in and supervising that work and by 13 Going back on the record. The time on the video
14 assisting either in a primary way or in a nonprimary 14 screen is 12:11 and 54 seconds. Please continue.
15 way in writing up the results and in disseminating 15 BY MR. DUSSEAULT:
16 those results to the public. 16 Q. Mr. Blankenhorn, if you would turn,
17 Q. But you will typically bring in someone 17 please, to your index of materials considered in
18 else who conducts the study? 18 exhibit 1.
19 A. Well, typically, our studies are done by 19 You were testifying before our break about
20 groups of scholars. We tend to have a model that is 20 certain studies in which you've been involved.
21 interdisciplinary and collabora- -- collaborational 21 Are any of those studies that you're
22 -- if that's a word -- in nature. 22 referring to included in this index of materials
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1 with the -- this is the first time I've provi- -- 1 A. Oh, no.
2 done this for this kind of court situation, and I was 2 I'm not -- this isn't related. I'm not --
3 simply relying upon my experience in writing 3 I see. I understand.
4 academic-style articles. 4 The anthropological quarterly 1998, I'm
5 And I was simply trying to follow the 5 trying to remember the title of the article, so I
6 conventions of citation that would be customary in 6 can't say that I have read every word of every page
7 those situations. 7 of that particular article, because I'm not -- I'm
8 Q. Okay. Are all of the documents included 8 not recalling in my mind right now which article that
9 on your index of materials considered documents to 9 was.
10 which there's a specific citation in the report 10 In the second instance, I'm pretty sure I
11 itself? 11 read everything. I may have skipped a page or 2, but
12 A. I believe that's true. I -- I -- I -- I 12 I think I'm pretty familiar or was familiar with that
13 would have to go through and visit -- revisit every 13 at the time.
14 single instance and just double-check -- 14 Number 3, yes.
15 Q. Okay. 15 Number 4, yes.
16 A. -- but to the best of my recollection, the 16 Number 5, yes.
17 answer to that is yes. 17 Number 6, yes.
18 Q. Okay. Now, have you -- for each of the 18 Number 7, yes.
19 materials listed here, have you read the entire 19 Number 8, yes.
20 document? 20 Number 9, yes.
21 A. If you mean every word of every page of 21 Number 10, I may have skipped a few pages,
22 every document, the answer would be no. 22 but I'm fairly familiar.
Page 111 Page 113

1 Q. Okay. Are there -- strike that. 1 Number 11, I'm not recalling the
2 Are there any documents that you include 2 specifics. I would need to see the document to
3 here as to which you can say with confidence that 3 recall if I've read every word of every page.
4 you've read the whole document? 4 Same with number 12.
5 A. Yes. 5 13, yes.
6 Q. Which ones? 6 14, yes, although I may have skipped a
7 A. Do you want to go down the list -- 7 page or 2.
8 Q. Sure. 8 15 the same.
9 A. -- of all of them? 9 16, yes.
10 Q. Just the ones that you can say with 10 17, I would have to see the document
11 confidence you've read the entire document. 11 again.
12 A. Well, let's begin with the first one. 12 18, yes.
13 Trying to find footnote number 1 if 13 19, yes, although I skipped a couple of
14 somebody can help me. 14 chapters of that book.
15 MR. THOMPSON: Oh, you can refer to the 15 20, yes.
16 index of materials considered, is probably the 16 21, yes, although I may have skipped a few
17 easiest, at the end of the -- 17 pages.
18 THE WITNESS: But I need to see -- I need 18 22, yes.
19 to see -- 19 23, I skimmed it pretty carefully in those
20 MR. THOMPSON: That's fine. 20 areas that I didn't read in its entirety. I was
21 So Mr. Dusseault, the way I think he's 21 really focusing on a specific question, and so there
22 going to do it -- 22 were other chapters of that book that did not relate
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1 BY MR. DUSSEAULT: 1 Q. Now, you present the question as whether
2 Q. Are you not able to answer -- 2 or not to grant equal marriage rights to gay and
3 A. I have an opinion -- 3 lesbian persons.
4 Q. Are you not able to answer the question 4 Would you agree that in Prop 8 the
5 whether gay and lesbian persons in California had 5 question that was actually presented to voters was
6 equal marriage rights as you use that phrase in 6 whether to take away those equal marriage rights that
7 paragraph 14 the day before Proposition 8 passed? 7 had already been deemed to exist?
8 MR. THOMPSON: Objection to the extent it 8 MR. THOMPSON: Objection, calls for a
9 calls for a legal conclusion. 9 legal conclusion.
10 A. If by equal marriage rights we mean, did 10 A. I -- I would not view it that way.
11 gay and lesbian persons in California have the right 11 I view -- I view the -- although I am
12 prior to the passage of Prop 8 to marry one another, 12 fully aware that those proponents -- I'm sorry -- the
13 then, I believe that they did have that right prior 13 opponents, those who opposed Proposition 8, phrased
14 to Proposition 8 in the immediate preceding months of 14 it exactly that way.
15 the passage of that initiative. 15 But my own understanding, which is perhaps
16 BY MR. DUSSEAULT: 16 somewhat of a variation on that -- on that
17 Q. Okay. And just since this is a phrase 17 formulation is that I view the Prop 8 initiative as
18 that you've used in your report, is that how you mean 18 the reinstating of the customary man-woman nature of
19 the phrase equal marriage rights, the right of a gay 19 marriage that has existed in California and in all
20 and lesbian person to marry someone of the same-sex? 20 human groups in almost all of human history.
21 A. I'm using the term out of respect for 21 And so that while it is true that the
22 those advocates of same-sex marriage. I use the term 22 equal marriage rights as I have -- we are -- as I
Page 131 Page 133

1 to -- to show respect, because that is the term 1 have defined them existed as you put it on the day
2 that's commonly abused by those advocates. 2 prior to Prop 8's passage, I view the larger social
3 And when they use the term, what they mean 3 and political process there as bringing to bear the
4 to say is that an individual has the right to marry 4 will of the voters on the question of the restoring
5 the person of their choosing. And that's what they 5 of the customary marriage form that had heretofore
6 mean. 6 existed in California and throughout history and the
7 And so I use the term understanding that 7 world.
8 that's the meaning, and I use the term out of respect 8 BY MR. DUSSEAULT:
9 for wanting to use the exact language of those whose 9 Q. So in your view as an intellectual matter,
10 argument I'm contesting. 10 as you're saying here, does it make any difference
11 Q. I just want to understand the parameters 11 whether the issue is whether to grant equal marriage
12 of what you're talking about since you've presented a 12 rights that have never been granted or restore a
13 question whether or not to grant equal marriage 13 definition that existed at some prior point in time?
14 rights. 14 Does -- does how you come to this
15 As you use that term here, you're using it 15 situation affect how you approach this as an
16 to mean the right of someone to marry someone of the 16 intellectual matter from your perspective?
17 same sex as well as someone of the opposite sex. 17 MR. THOMPSON: Objection, vague.
18 True? 18 A. I certainly understand the proposition and
19 A. I'm using it to mean the right to marry 19 the validity of the -- I certainly can see how a
20 the person of their choice, irrespective of the 20 person -- particularly a person who was a supporter
21 person's sexual embodiment or gender or orientation. 21 of same-sex marriage could say that the purpose of
22 That's what I'm meaning. 22 Proposition 8 is to take away a right that I now
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1 A. Well, the way I think about it is that if 1 toward this other more historically foundational and
2 you put up these 2 normative or descriptions of 2 historically very widespread and commonly accepted
3 marriage, if your question is, how many people lean 3 understanding.
4 strongly toward one versus the other, I -- and if 4 Q. Okay. In paragraph 15 of your report, you
5 your question concerns U.S. adults, I don't -- I 5 offer by my count 8 quotes that you characterize as
6 don't have an opinion as to the current breakdown. 6 representative examples of prominent persons making
7 Q. I guess what I was going for but more as 7 precisely this argument, which I assume refers to
8 you present these as 2 alternative ideas, but 8 idea 1.
9 wouldn't you agree that many people view marriage as 9 A. Can you tell me the page?
10 both a private, loving commitment between adults and 10 Q. Oh, yes.
11 something that benefits and protects any children who 11 Page 3.
12 come into that marriage? 12 A. Yes.
13 A. Well, the important words that I tried to 13 Q. So just -- just to set the table again:
14 use in the document are -- I'm not looking at it 14 On page 3, you say, idea 1, marriage is fundamentally
15 right now -- but I used words like primarily or 15 a private adult commitment.
16 fundamentally or in essence. And the reason I used 16 Then in paragraph 15 you say: Consider
17 words of that nature is because whatever else -- I 17 these recent representative examples of prominent
18 mean, the -- the -- to take one example of why I used 18 persons making precisely this argument.
19 that phrasing, the proponents of the view that 19 And you follow that with 8 quotes?
20 marriage is fundamentally a pro-child social 20 A. Yes.
21 institution would also readily recognize and 21 Q. Now, this is something that you do in at
22 understand that marriage has an individual private 22 least 3 spots in your report, make a statement and
Page 151 Page 153

1 affective dimension between the spouses. 1 then have a series of quotes that you list.
2 So it's not a case that those people who 2 Right?
3 hold that view deny that that dimension of marriage 3 A. Yes.
4 exists. And I have written about that dimension in 4 Q. Okay. How do you go about identifying
5 my book. 5 what quotes you're going to put into your report?
6 So I'm happy to discuss it, but the -- 6 A. I try to -- what I did during -- over a
7 the -- the issue before us is not that one. The 7 period of several years was to search the public
8 issue before us is, what if anything do we think can 8 record of debate and the corpus of modern
9 be stated about the public purposes of marriage. 9 scholarship, and I sought as carefully as I could to
10 And if the answer to that question is a 10 literally collect these definitions. And I tried
11 statement that the definition of marriage is that 11 to -- if the person was a -- was a -- I use the word
12 it's an interdependent relationship between 2 people, 12 prominent just to -- somewhat loosely to really mean
13 then in essence or fundamentally or primarily, then 13 a person whose views are deemed worthy of publication
14 that is indicative of the fact that the person who is 14 in some significant publication and has some standing
15 saying that is very much oriented toward this first 15 in society where that person would be viewed as
16 view of marriage I've talked about. 16 having an opinion that is, you know, worth listening
17 Whereas if the person were to say, 17 to by others, and so forth, and I tried to as
18 while -- you know, while acknowledging the multiple 18 carefully and as comprehensively as I could collect
19 purposes of marriage, the fundamental and primary and 19 those definitions.
20 cross-cultural purpose of marriage in human groups is 20 And then I sought for the purposes of this
21 to be a pro-child social institution, that would -- 21 report to choose those that I thought were
22 that would indicate that that person was veering 22 representative of the argument that I think is --
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1 to -- to illustrate my point, to be examples of the 1 A. Well, if you mean, does that idea also
2 point I'm trying to make. 2 have valence in the citizenry as a whole, I would say
3 And I tried to -- you know, I tried to be 3 the answer is yes.
4 as fair-minded as possible, and I tried to not choose 4 Q. Okay. And would you say that this view is
5 obscure people or obscure formulations. I chose 8 5 also reflected in laws that in past several decades
6 here, but I could just have easily have given you 80. 6 have been passed in states of the country?
7 Q. Okay. And if I understand your answer, 7 A. I'm not really -- don't feel able to
8 what you're trying to do is not endorse or dispute a 8 answer that question precisely.
9 view, not test its validity, just give examples of 9 In a -- in a general way, I would -- I
10 arguments that people have made? 10 would be able to say I think with some confidence
11 A. That is exactly right. 11 that in a general way, my view is that a broad
12 Q. Okay. With respect to the 8 authors that 12 tendency in family law as a scholarly discipline is
13 you quote in paragraph 15, do you know whether any of 13 toward endorsement or a greater -- a growing
14 them also talk about the role of child well-being and 14 acceptance of this view, and some trends in legal
15 protection of children in marriage elsewhere in their 15 changes themselves have tended toward this view but
16 work? 16 while others have not.
17 A. Well, I know that some of them do. I 17 Q. Do you know -- accepting that you're not
18 suspect that all of them do. 18 an expert in law, but someone who has read a lot on
19 Yes, I think it's fair to say that all of 19 these subjects, do you know whether this view of
20 them do. 20 marriage as fundamentally commitment between adults
21 Q. Okay. In paragraph 16, you say: This 21 has been expressed by judicial decisions of the U.S.
22 understanding of marriage is reasonably widespread 22 Supreme Court?
Page 155 Page 157

1 today particularly among U.S. journalists and 1 A. I'm not aware.
2 advocates of same-sex marriage. 2 Q. Okay. Do you believe it would affect any
3 Do you see that paragraph? 3 of the opinions you're offering in this case if in
4 A. Yes. 4 fact it had?
5 Q. What do you mean when you say, the 5 MR. THOMPSON: Objection to the extent it
6 understanding is reasonably widespread? 6 calls for a legal conclusion.
7 A. Well, I mean that if one follows the 7 A. My -- my view of what marriage is and its
8 public debate on this issue, and if one tries to be 8 public purposes and its dimensions are a result of my
9 reasonably well informed about the scholarly and 9 study of the actual -- the actual history, the
10 legal and journalistic and civic and religious 10 textured history of the institution itself.
11 discussions of the topic of marriage, that one will 11 And while -- while law is certainly an
12 commonly hear this idea being given -- one will 12 important influence on that institution, it's by no
13 commonly hear this idea expressed. 13 means the only one. And so while I would always be
14 It's not unusual or rare to hear it 14 interested and influenced -- I would always be
15 expressed. I would say it's -- it's -- it's as a 15 interested as a topic of knowledge to know what legal
16 reasonably widespread idea in the sense that it is 16 thinkers have stated about this, my overall
17 frequently voiced, particularly by these groups I've 17 understanding of what marriage is would be informed
18 mentioned. 18 by a multiplicity of sources, and contemporary views
19 Q. And it's -- but it's also an idea that is 19 of jurists would be one of them but not the only one.
20 expressed well beyond just U.S. journalists and 20 BY MR. DUSSEAULT:
21 same-sex marriage advocates. 21 Q. When did this understanding of marriage as
22 True? 22 primarily an adult commitment first arise in the
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1 gotcha argument on the issue of why we should allow 1 All we have to do is literally let nature
2 gay marriage, they really I believe are in my view 2 take its course. It would be like, why do we have to
3 really engaging -- they really are misunderstanding 3 have an order -- do we want to order birds to sing
4 this institution at a very deep level. 4 and fish to swim. People have sex, and that sexual
5 I also want to make a final point in this 5 activity produces children.
6 regard, which is that there is a very -- actually -- 6 And the point is not to stand around
7 I'm sorry -- I want to make 2 very quick final 7 permitting it or mandating it. The point is to
8 points, and then I'll stop. 8 regulate it in the interests of the social life of
9 One point is that there is a great deal of 9 the child.
10 variability in the status of infertility in 10 And in order to achieve that goal, humans
11 childishness -- childlessness. The couple may decide 11 have created an institution called marriage. All of
12 at some point in their marriage that they do not want 12 the scholars of the modern era, all of them with very
13 to have children, but that opinion may change over 13 few exceptions have commonly acknowledged that, no,
14 time. 14 this is not a controversial assertion, that this is
15 And even the physical elements of 15 the fundamental purpose of marriage in human groups.
16 infertility are almost never known prior to the 16 So I've taken a moment to answer this
17 marriage. Very few couples get married knowing for 17 question at some length because it's a very important
18 certain that there's infertility. And even when 18 one. It is widely and deeply misunderstood in the
19 infertility problems emerge, there are -- sometimes 19 public discussion.
20 it doesn't prevent them from having a child, so this 20 And those who use the argument in the way
21 very practical nature of the -- of the variability of 21 that you're doing I believe really -- I -- I think
22 the status such that it's subjective to human -- 22 have not sufficiently thought through the role and
Page 183 Page 185

1 changed through human opinion and agency and change 1 meaning of marriage.
2 in the -- how are bodies are working related to 2 Q. Okay. I think you may have read a good
3 sexual reproduction make it a complete impracta- -- 3 bit into my question that I didn't intend, because I
4 impracticability, even if one wanted to to somehow 4 don't think I said anything about requiring
5 inquire prior to marriage about the fertility 5 procreation or anything.
6 intentions of the couple. 6 I know --
7 There's another reason why we don't this 7 A. Well, I'd --
8 and why no one in the history of the world as ever 8 Q. -- the things you've talked about quite a
9 managed to do this, and that is because we don't need 9 bit.
10 to. People like to have sex. They frequently have 10 A. I'd like to go back and find out what the
11 sex. And they don't -- we don't need to order them 11 question is.
12 to do it. We don't need to stand at the gate of 12 (Talking at the same time.)
13 marriage and make sure they're going to do it. We 13 A. I would like to know what the question
14 don't need to tell them that they have to have 14 was, because I do believe that was exactly the
15 children. 15 implication.
16 People commonly want children. The 16 MR. THOMPSON: It's all right. It's all
17 overwhelming majority of married people in the United 17 right.
18 States and throughout all of history have had 18 MR. DUSSEAULT: No.
19 children. And we don't need to order them to do it. 19 Let's read it back. I'd like to see if
20 We don't need to issue a production quota. We don't 20 what he said is connected to what he was asked.
21 need to stand around and inquire as to their status 21 (The reporter read the record as
22 about the intention to procreate. 22 follows:
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1 raised from birth by 2 biological parents versus 1 compared the outcomes where children are raised
2 raised from birth by 2 other people? 2 continuously with 2 parents who are biological
3 A. Well, I can only refer you to what the 3 parents versus a child raised continually by 2 people
4 researchers themselves say -- 4 where one or both is not the biological parent?
5 Q. Okay. 5 A. Yes.
6 A. -- in their conclusion and in their 6 Q. What is -- what's an example of such a
7 summation of the findings. 7 study?
8 I'll just read it to you: 8 When I say, continuously, again, I don't
9 First, this is under the -- this is in 9 mean stepfamilies. I mean from birth.
10 their conclusion section, what they call implications 10 A. Oh, I thought you were including -- I
11 of the research -- 11 thought you might be including issues of stepfamilies
12 Q. Okay. 12 on issues of adoption.
13 A. -- for the broader public discussion. 13 Q. What I'm looking at is, are there any
14 First, research clearly demonstrates that 14 studies that you're aware of where in both samples,
15 family structures matters for children, and the 15 the child is raised by the same 2 people
16 family structure that helps children the most is a 16 continuously, but in one, the 2 people are biological
17 family headed by 2 biological parents in a 17 mother and father, and in the other, one or both of
18 low-conflict marriage. Children in single-parent 18 the people is not the biological mother and father.
19 families, children born to unmarried mothers, and 19 A. Well, I think the answer is yes.
20 children in stepfamilies or cohabiting relationships 20 But the problem means -- the problem is
21 face higher risks of poor outcomes than do children 21 what exactly is your definition of continuously.
22 in intact families headed by 2 biological parents. 22 Do you mean that the child who's not the
Page 263 Page 265

1 Thus is -- I'm skipping a sentence. I can 1 biological offspring cannot have spent one day
2 read it if you want, but the concluding sentence 2 outside the care of these parents?
3 says: There is thus value for children in promoting 3 Or what would be your definition of
4 strong, stable marriages between biological parents. 4 continuous?
5 Q. Okay. But so even just taking just that 5 Q. Well, I'm trying to distinguish it from,
6 language, the authors are comparing 2 biological 6 say, a step situation where a child may have 2
7 parents in a low-conflict marriage to single-parent 7 biological parents until they're 10 years old and
8 families, children born to unmarried mothers, and 8 then the mother gets div- -- the parents get divorced
9 children in stepfamilies. 9 and the mother marries another --
10 A. And cohabiting. 10 A. There are --
11 Q. And cohabiting. 11 Q. -- person.
12 But not for example to a situation where a 12 A. -- many studies that compare those 2
13 man and woman through adoption or otherwise together 13 -- (indiscernible).
14 raise a child from birth. 14 Q. Okay. I'm talking about where the family
15 A. I'm not sure how they treated the issue of 15 unit is -- and I've seen this in the literature --
16 adoption in this sample. 16 intact throughout the child's dependent years, so
17 It's a fairly small number of children. 17 same father, same mother, or same 2 parents, but
18 And I don't think it would have affected it much one 18 there is no biological connection between one or both
19 way or the other, but it's an interesting question. 19 of the parents and the child.
20 I don't know if in the methodology they 20 Has there been any comparison --
21 say how they handled adoption. 21 A. The closest thing --
22 Q. Are you aware of any study that has 22 Q. -- in that situation?
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1 A. -- we have would be those studies that 1 I've tried to familiarize myself with these studies.
2 compare the 2 married biological parents -- for the 2 And I'm aware of the general weight of evidence in
3 sake of shorthand, perhaps we can at all it intact. 3 them.
4 Would that be okay? 4 If you want me right now without any
5 Q. Sure. 5 ability to refer to anything to give you specific
6 A. And then compare children who have been 6 titles of articles and authors and years of
7 adopted at very early ages -- let's say in infancy -- 7 publication, my answer is that I would be happy to do
8 by 2 married parents. There have been such studies. 8 that, but I can't do it right now on this moment
9 Q. And have they shown there to be difference 9 without any ability to confirm anything.
10 in outcomes for the children who are biologically 10 Q. And you don't include any of those studies
11 connected to both parents versus those who are not? 11 on your list of materials considered, do you?
12 A. My view of the weight of evidence on this 12 A. Well, I don't think I discuss this
13 is that there -- yes. 13 particular issue in my paper.
14 The studies are not completely uniform. 14 Q. Well, you've -- you've discussed what you
15 There's some diversity in -- in the field, and it's a 15 describe as the need of a child to be raised by the 2
16 little bit of an embryonic field of research, but my 16 parents who created the child.
17 reading of the evidence is that the weight of 17 Right?
18 evidence suggests that there are differences between 18 A. I do discuss that, yes.
19 those 2 groups in terms of child outcomes. 19 Q. Okay. And you have cited to several
20 And I am for example directing a study now 20 studies that address this child welfare issue and
21 that looks at exactly this question. And the 21 that use the word biological when talking about the
22 research will be published in the next year or so, 22 parents.
Page 267 Page 269

1 and the preliminary data do suggest the differences 1 Correct?
2 that I've described. 2 A. That's correct.
3 The differences -- well, that's the 3 Q. Okay. But you don't to support your
4 answer. 4 positions cite to any of the studies that you say
5 Q. What -- give for me the names or authors 5 have actually compared an intact family where both
6 of published studies that have compared 2 intact 6 parents are biologically the creators of the child --
7 families, one where there's a biological connection 7 A. -- (indiscernible) -- I --
8 between both parents and the child and one where one 8 Q. -- and an intact family where one or both
9 or both of parents is not biologically connected to 9 of them is not/adopt (phonetic).
10 the child. 10 Correct?
11 A. Well, there is -- there is a body of 11 A. Well, I am reasonably confident that a
12 literature on -- on this issue, and I would have to 12 number of these sources that I'm citing here discuss
13 go back and refresh my -- I would have to go back and 13 this issue.
14 pull together the -- what I consider to be the best 14 For example --
15 or most representative studies for you. I'd be happy 15 Q. Like?
16 to do that. 16 A. -- I'm reasonably confident that David
17 Q. But you can't as you sit here even name 17 Popenoe in his article discusses it. I'm fairly
18 one study that has compared those 2 family 18 certain that McLanahan and Sandefur discuss it. I'm
19 situations? 19 reasonably confident that Amato discusses it.
20 A. I'm telling you with confidence that such 20 As I said, in the Child Trends study, I
21 studies exist, that I've over the 20-year period that 21 just don't know how they're looked -- I don't know if
22 I've been looking at this broad cluster of questions, 22 they broke out the adoptive category in the way that
68 (Pages 266 to 269)

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Page 270 Page 272

1 you're suggesting that would have been useful, and I 1 A. No.
2 agree with you. 2 Q. Only because of the gender -- excuse me --
3 Q. Well, let me ask you this. 3 the sex of the participants?
4 In -- 4 A. Yes.
5 A. But it's not an unusual question. It's 5 Q. Okay.
6 common among scholars, and there have been -- there 6 A. And for what that difference -- for what
7 have been efforts to answer it. I think in -- I'm 7 that difference means to marriage's central purpose,
8 reasonably sure, including by the specific people 8 which is to unite the male and female in a pair bond
9 that I'm citing there. 9 that is child rearing in nature.
10 Q. Do you know whether any of the sources 10 So, yes, the fact that -- the fact of the
11 that you quote from in paragraph 37 broke out 11 man marrying the woman -- I mean, the man marrying
12 adoptive families from the biological group? 12 the man or a woman marrying a woman would constitute
13 A. It's common in the scholarship to do that. 13 a very seismic and radical negation of this
14 Q. Okay. But do you have any actual support 14 fundamental principle of marriage historically as a
15 for the premise that any of them did that? 15 human institution. That's not a nontrivial
16 A. As I just stated, I would have to go back 16 difference.
17 and read the -- I would have to go back and re-read 17 Q. Okay. Are you aware of studies showing
18 the document specifically for this question of how 18 that children raised from birth by a gay or lesbian
19 they treated the question of adoptive children, but 19 couple, have worse outcomes than children raised from
20 as a general rule, I can say to you with quite a 20 birth by 2 biological difference-sex parents?
21 level of confidence that it is frequently done, and I 21 A. No.
22 can also report to you that the general finding is 22 Q. Okay. Let's take a look at the Amato
Page 271 Page 273

1 that the outcomes are not identical and that those 1 article that you mentioned.
2 children raised in adoptive homes suffer from 2 (Blankenhorn Exhibit No. 6
3 somewhat poor outcomes on some important variables 3 was marked for
4 than do those children raised in biological intact 4 identification.)
5 married couple homes. 5 BY MR. DUSSEAULT:
6 This is a -- this is a finding in the 6 Q. Now, the portion of the Amato article that
7 field. And it's not -- it's not -- because of the -- 7 you quote refers to in the first couple of lines to
8 because of the -- because of the closeness of the 8 continuously married parents, and then at the end
9 differential, it's not true that every study finds 9 says: The distinction is even stronger if we focus
10 this, because remember -- recall, then, the 10 on children growing up with 2 happily married
11 discussion of adoption. 11 biological parents.
12 Adoption is the family form that most 12 Do you see that?
13 rigorously seeks to mimic the married couple form. 13 A. M-hm, yes.
14 And so it would be natural to assume that the best 14 Q. Do you know whether Amato in his work
15 outcomes for children in the -- if I may use a 15 wrote adoptive families out from the biological
16 shorthand, nontraditional, would be in adoption. 16 group?
17 Q. But wouldn't -- 17 A. Right now, I do not.
18 A. And that is in fact true. 18 Q. Turn if you would to page 96. It has a 96
19 Q. Wouldn't a same-sex couple that married if 19 on the bottom.
20 it were permitted to do so, quote, unquote, mimic 20 A. Yes.
21 this -- as you use that word -- the traditional 21 Q. Do you see footnote 63?
22 marriage form? 22 A. Yes.
69 (Pages 270 to 273)

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Case3:09-cv-02292-VRW Document302 Filed12/11/09 Page1 of 26

1 COOPER AND KIRK, PLLC

8 LAW OFFICES OF ANDREW P. PUGNO

11 ALLIANCE DEFENSE FUND

15 ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,

20 KRISTIN M. PERRY, SANDRA B. STIER, PAUL

DEFENDANT-INTERVENORS’ OPPOSITION TO MOTION IN LIMINE RE YOUNG, MARKS, AND BLANKENHORN

17 ALLIANCE DEFENSE FUND

20 Jordan W. Lorence (DC Bar No. 385022)*

DEFENDANT-INTERVENORS’ OPPOSITION TO MOTION IN LIMINE RE YOUNG, MARKS, AND BLANKENHORN

I. Katherine Young. ..................................................................................................................... 4

a. Professor Young is Qualified to Offer Expert Opinions in this Case .......................... 4

b. Professor Young’s Opinions Are Relevant.................................................................. 6

c. Professor Young’s Opinions are Reliable.................................................................... 8

II. Loren Marks ....................................................................................................................... 10

a. Professor Marks is Qualified to Offer Expert Opinions in this Case ........................ 10

b. Professor Marks’ Opinions Are Relevant .................................................................. 11

c. Professor Marks’ Opinions Are Reliable ................................................................... 12

III. David Blankenhorn . ............................................................................................................ 14

a. Mr. Blankenhorn is Qualified to Offer an Expert Opinion in this Case .................... 14

b. Mr. Blankenhorn’s Opinions Are Relevant ............................................................... 18

c. Mr. Blankenhorn’s Opinions Are Reliable ................................................................ 18

Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) ....................................................................... 2

Gibbs v. Gibbs, 210 F.3d 491 (5th Cir. 2000) ..................................................................................... 3

Johnson v. Robison, 415 U.S. 361 (1974) ......................................................................................... 12

Marshall v. Sawyer, 365 F.2d 105 (9th Cir. 1966) ............................................................................ 18

United States v. Chischilly, 30 F.3d 1144 (9th Cir. 1994) ................................................................... 1

Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ................................................................................. 4

FED. R. EVID. 201................................................................................................................................. 3

FED. R. EVID. 401................................................................................................................................. 2

FED. R. EVID. 702........................................................................................................................ passim

1 In contesting the relevance of Professor Marks’ testimony, Plaintiffs once again

13 Dated: December 11, 2009

18 By: /s/Charles J. Cooper

Keywords: marriage; same-sex marriage; children; rights; law; Canada

W hen seven same-sex couples' applied in

2001 for civil-marriage licenses at Toron-

doms (1982). The court gave parliament two

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abortion; restrictions on intercourse; restrictions to reproduce itself. Many advocates of same-sex

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