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Abstract:
This article documents a global movement to legalize same-sex marriage, and argues that it jeopardizes both public and private interests in marriage. Legalization of same-sex marriage is correlated with dilution of the social meaning and significance of marriage, and with reduced public commitment to and support for families. The transformation of marriage by inclusion of relationships with different expectations, characteristics and moral behavior styles threatens the integrity, fidelity, and monogamy of the social institution of marriage, as well as children and adults who invest in and depend upon marriage. The threat to civil rights of opponents of same-sex marriage is reviewed, and intimations of some renewal of respect for conjugal marriage in some regions of the world is noted, including the 137 nations that have adopted explicit constitutional provisions protecting marriage and/or family relations. Based on a paper that was presented at the World Congress of Families in Warsaw, Poland in 2007, this article opens and closes quoting Night by Elie Wiezel to emphasize the need to speak up (like Moishe the Beadle) and never be silent about perceived dangers. Three appendices track the growth of legalization of same-sex marriage and unions in nations and states, and list the national and state constitutional provisions protecting conjugal marriage and families.

marriage, family, same-sex marriage, civil unions

Abstract:
After initially reporting on the status of the movement for same-sex marriage in the United States and around the world, this article reviews the five key claims of the "conservative case" for same-sex marriage ("we exist," stabilization, sexual taming, social gains, and no harm) and compares them to the seven core principles of conservatism (preservation, institutions, caution, experience, distrust, individualism, and morality). It finds that the claims for same-sex marriage are seriously deficient when measured against those conservative principles. It presents a conservative case against same-sex marriage both in terms of those key principles of conservatism as well by reference to the practical harms and detriments to society, families and individuals that have come and may be reasonably expected to flow from same-sex marriage. Borrowing Garrett Hardin's famous "tragedy of the commons" metaphor, this article suggests that lack of personal responsibility for the common interest in marriage underlies much of the acceptance of same-sex marriage, and concludes with a call to consider the ultimate accountability that the consequences of our social choices will produce.

marriage, conservatism, same-sex marriage

Abstract:
This article examines in the history of the Hague Convention on Inter-Country Adoption and the potential impact on adoption of children by gay and lesbian couples and partners,and international recognition of such adoptions. It is timely because America's ratification of the Hague Convention has just been completed and the American implementing laws have now taken effect. When the Convention was first drafted, no country allowed gay adoption, but by the time the Convention was approved, it was emerging and was being discussed. The Hague Conference drafting discussions addressed the issue. It is clear that the drafters of the Hague Convention intended the Convention to have no impact whatever on inter-country recognition of adoptions by gay and lesbian couples. The Convention intended to leave that to the domestic policies of the sending and the receiving states. The potential for the Hague Convention, ironically, to reduce the number of inter-country adoptions is noted, but the intent of the Convention to eliminate obstacles to responsible inter-country adoption in the long run is encouraging.

Abstract:
The article reviews the extensive effort (and little judicial success) of advocates of same-sex marriage to invoke the "Loving analogy" to support their claims for same-sex marriage. The precedents are examined, noting that U.S. Supreme Court explicitly considered and rejected the "Loving" analogy just five years after it decided Loving v. Virginia. There is extensive literature from African-American leaders, scholars, and commentators who reject on eight different grounds the "Loving analogy" to same-sex marriage. African-American voters have similarly rejected the analogy as they have voted against same-sex marriage overwhelmingly in proportions exceeding that of other groups of Americans generally. Our article argues that the "Loving" analogy for same-sex marriage misapplies Loving and infringes upon the fundamental principles of Loving v. Virginia. Three appendices and five maps are included to illustrate our assertions. We conclude that the sooner the Loving analogy for same-sex marriage is buried, "the better it will be for the legacy of Loving."

marriage, family, same-sex, gay, lesbian, constitutional law, civil rights

Abstract:
In the Spring of 2007, Professor Barry Feld delivered the inaugural Distinguished Lecture of the new Utah Criminal Justice Center at the University of Utah (S.J. Quinney) Law School. In that lecture he suggested (in criticizing LWOP sentences for juveniles), inter alia, that perceptions of juvenile delinquency and of the reasonable of responses to it may be attributed in some part to other factors than the delinquent behavior of youths, and he focused specifically upon racism.

This article is one of the invited responses to that lecture. After some preliminary comments about Professor Feld's excellent paper, and noting that the aging of the baby-boom generation may influence social perception of the threat of juvenile crime, this article picks up one part of Professor Feld's theme and develops it in a new direction. It suggests that we may be punishing children for the failings and mistakes of their parents. It notes that fragile family structure and marital family instability are strongly associated with juvenile delinquency. It observes that most family law casebooks and juvenile justice casebooks entirely ignore (at least in their tables of contents and indices) the very powerful connection between juvenile delinquency and fragile family structure and marital disintegration. It presents some of the evidence of such connections, and reviews some of reasons for such connections and for the academic neglect of such connections, including the myth of the founding of the juvenile courts in America. It concludes with a suggestion that programs to promote and strengthen marriages might be a rational response to the problem of juvenile crime, and might be effective to reduce the incidence of juvenile delinquency.

Abstract:
Recognition across state and national borders of controversial forms of domestic relationships have existed throughout the history of conflict of laws, creating tension between two important principles: respect for comity and protection of valued domestic public policies. Drawing upon several examples, and particularly the history of international and intrastate recognition of slavery (a “domestic relationship”) in Anglo-American history, the article shows that despite the comity-based presumption of respect for legal status created in other jurisdictions, when strong public policies protective of domestic relations and status have been implicated, American states consistently have declined to give interstate recognition to those controversial forms of domestic relationship that are being imported. The article examines several examples of this and reviews the principles that are historically established in dealing with such conflicts, and suggests the relevance of this history and these principles for interstate recognition of same-sex marriage and other controversial contemporary domestic relationships.

choice of law, conflict of laws, family law, same-sex marriage, adoption, slavery, comity, public policy

Abstract:
This essay argues that the decision of the California Supreme Court legalizing same-sex marriage was beyond the competence and legitimate authority of the court, and that the 121-page slip opinion of the majority was “padded for pedantic display.” The passage of Prop 8 by 600,000 votes (52.3% to 47.7%), in which 2 million more voters voted for Prop 8 than voted either for Governor Schwarzenegger or Senator Feinstein when they were reelected by “landslides” in 2006, and with nearly the same percentage of the California vote that Barack Obama received nationally in what was considered a “mandate” in the same 2008 election, represents the clear will of the people of California. Attorney General Brown’s argument that Prop 8 (which he was supposed to defend) should be declared unconstitutional because it would reverse an “inalienable right” was inconsistent with any principled theory of constitutional interpretation, and the lawless acts that targeted supporters of Prop 8 following its passage in California is linked to the lawlessness of the court’s ruling in legalizing same-sex marriage.

California, family law, marriage, same-sex marriage, legitimacy, separation of powers, democracy, self-government, judicial restraint

Abstract:
This article reviews the emergence of the prevailing contemporary rule in custody and visitation cases that evidence of parental infidelity (adultery) is irrelevant and inadmissible unless direct connection to a specific harm suffered by the child can be produced. After reviewing the history of this rule, the article criticize it because it violates the basic principles upon which sound evidentiary presumptions are based and is inconsistent with public policy favoring fidelity in marriage. Reviewing the reasons offered for the emergence the "no-harm" rule the article conclude that they are inadequate and based on false assumptions. The author asserts that the new "no-harm" custody assumption disproportionately penalizes mothers as compared to fathers, and offers evidence that parental infidelity does generally cause serious and long-lasting harm to children of the marriage that is violated. The article concludes that the current "no-harm" assumption which turns a blind eye to the pain and suffering of children be replaced with a rule that reflects realities of harm to children, access to evidence, and that is fair.

Abstract:
This article examines the emergence of same-sex civil unions and marriage-like domestic partnership schemes in the United States of America in recent years. It describes distinctions, differences and definitions of civil unions and domestic partnerships and focuses in particular upon Civil Union legislation enacted in Vermont. It also reviews (current to the time the paper was presented) a summary of statutes and cases that address domestic partnership and civil union issues. The first three appellate court decisions to cite the Vermont civil union legislation are discussed in this paper. It criticizes the double standard of the Vermont's Supreme Court's review of the challenge to the unethical practices of the 14 legislators who allegedly voted for the civil union law while participating in a betting pool, in possible violation of state civil laws, constitutional provisions, and criminal statutes. In an effort to anticipate potential effects on family law doctrines, the articles suggest 32 different signficant consequences of legalizing Civil Unions or marriage-like domestic partnerships for existing family rules and regulations, and potential structural and social consequences. The author suggests that the costs of civil unions are disproportionately borne by the most vulnerable in society and that the legalization of broad civil unions and domestic partnerships is unwise.

Abstract:
In promulgating the Principles of the Law of Family Dissolution: Analysis and Recommendations ("Family Dissolution Principles"), the American Law Institute (ALI) proposes an extensive set of new rules to apply in proceedings relating to family dissolution. One of the major policy changes in family law proposed by the Family Dissolution Principles is the expansion of the scope of relationships that are treated as family relations. Many relationships that in the past have been called "alternative relationships" (alternative to family relationships) are treated in the ALI Principles as equal to and given the same legal protections, benefits, rights, and remedies as historically have been extended by law to a relatively narrow range of intimate or domestic interpersonal relationships, specifically spousal and parent-child relations in the traditional marriage-based family. Most of the Chapters of the Family Dissolution Principles contain provisions that deconstruct and redefine "family" relationships. For example, many of the sections of Chapter 2 (Custody), Chapter 5 (Compensatory Payments), Chapter 6 (Domestic Partners) and Chapter 7 (Agreements) contain provisions that significantly expand protected family relations or radically alter existing family law doctrines. Among the most controversial of the proposed levelling reforms are those in Chapter 6 (Domestic Partners) where the ALI proposes to significantly increase the types of relationships that may claim the full economic protections and privileges of marital status upon dissolution. In Chapter 6, the ALI moves toward equalizing the legal status of all adult domestic relationships and the economic consequences of their dissolution by broadly defining domestic partners, liberally providing for how that status may be established, and proposing to extend almost exactly the same economic benefits to domestic partners as are provided to married couples upon dissolution. This article focuses on Chapter 6 to demonstrate the family-deconstruction-and-relational-equalization theme of the ALI's Family Dissolution Principles. It argues that Chapter 6 is predicated upon some erroneous assumptions about the characteristics of same-sex and heterosexual non-marital cohabitation, as well as the nature and qualities of marriage in general, and about the sameness of the economic expectations and interdependence of non-marital cohabitants and marital couples. It concludes that the ALI's Principles significantly redefines and deconstruct s the family by substantially and unjustifiably expanding the categories of relationships that are given legal preference as "family" relationships.

Abstract:
This essay documents the status of, reasons for, and prospects for success of the divorce reform movement at the end of 1999. It presents evidence of widespread dissatisfaction with current no-fault divorce laws and reviews recent legislative successes of the divorce reform movement. Some of the most influential arguments for divorce reform are summarized, and some of the major criticisms of divorce reform are reviewed. Nonetheless, divorce reforms of some sort are very likely to be enacted, though strong opposition from the bench and bar is likely and may undermine or co-opt the reform movement. Two concluding observations are made about the significance and possibilities of the divorce reform movement.