Blog post by ADF Senior Vice President; Senior Counsel Jordan Lorence

Wednesday the Senate Judiciary Committee heard testimony on a bill to repeal the federal Defense of Marriage Act (DOMA). ADF attorney Austin Nimocks testified against the bill and did an excellent job explaining the purpose of marriage in having children raised in the best social environment possible, one consisting of the child’s own biological mother and father who are united in marriage, and the importance of maintaining that common understanding of marriage in federal law. DOMA was signed into law by President Clinton in 1996 after being approved by huge majorities in both houses of Congress.

However, Democrats, including those on the Senate Judiciary Committee, now oppose DOMA, even though many of them voted for it in 1996 because they now support redefining marriage to include same sex couples.  Although the Democrats have a 53-47 majority in the Senate, it is uncertain whether this repeal could overcome a filibuster in the Senate, and it would not be approved by the Republican majority in the House of Representatives.  On Monday, President Obama said that he supported repeal of DOMA.

DOMA has two major parts.  One part allows states to decline to recognize a marriage consisting of a same sex couple that was legally entered into in another state.  The other major part of DOMA defines marriage only as one man and one woman for purposes of federal law.

I was able to assist Austin and watch the DOMA hearing at the Senate Judiciary Committee.  I offer several observations:

  1. The hearing hid the fact that the DOMA repeal could force all states to recognize same-sex marriages.

The Democrats who orchestrated this hearing cleverly directed its focus away from one of the major aspects of the DOMA repeal legislation that many would oppose – DOMA repeal would wipe out the provision that says states are free to decline to recognize same-sex marriages legally obtained in another state.  We would see same-sex couples who have obtained a marriage license in one of the few states where it is legal, come to one of the many states with a state DOMA, and argue in court that the second state must recognize their same-sex marriage license, even though same sex marriage is not legally recognized in the second state.

This gets into a complicated area of constitutional law concerning “full faith and credit.”  Generally, full faith and credit means this: If a court in State A enters a judgment, for example, that Mary owes Sam $2000, then Sam can go to State B to get a court order to take some of Mary’s assets there to pay the judgment.  State B cannot refuse to honor the court decision from State A under the Constitution’s Full Faith and Credit Clause. But how does that apply to marriage,  because a marriage license is not a court order?  Generally, states do not have to recognize licenses obtained in another state.  So, if someone in State A obtains a driver’s license, or a license to practice law, or a realtor’s license or a marriage license, State B has the discretion whether to recognize that license or not.

Whether the second state will recognize the license depends on what kind of license we are talking about. Most states generally recognize marriage licenses entered into in other states, so a man and a woman do not have to get married again when they move to another state.  In contrast, states generally require people to get new driver’s licenses and licenses to practice law if they move to another state. Federal DOMA made it very clear that a state recognizing only marriages of one man and one woman would not have to recognize a marriage license from another state obtained by a same-sex couple.  As a constitutional attorney, I am not exactly sure what the repeal of DOMA would mean for this area of law.  States might very well retain the power to decline to recognize marriage licenses from another state, because of the states’ general authority under our Constitution’s system of federalism.

The Senate hearing on Wednesday focused on couples who lived in the five states that have legalized same-sex marriage (Massachusetts, Connecticut, New Hampshire, Vermont, Iowa, and on Sunday, New York, as well as the District of Columbia).  They had legal marriages under state law, but were not recognized under federal law.  However, the hearing barely mentioned that these couples could move, for example, to one of the 30 states with a state constitutional provision defining marriage only as one man and one woman, and challenging that provision.  In effect, this may be an effort to force all states to recognize same-sex marriage.  The hearing would have had a different tone if the Judiciary Committee had focused on this important effect of the proposed DOMA repeal.

    2. Many others besides same-sex couples have problems obtaining federal benefits, and Congress can fix the problems without redefining marriage.  The hearing consisted of a number of people who had obtained a marriage license in one of the states that has legalized same-sex marriage, and how they have had trouble obtaining federal benefits.  For example, one of the same-sex partners dies, and the surviving partner cannot obtain Social Security benefits that a married couple consisting of a man and a woman could obtain.

But the hearing did not explain that others have the same problem.  For example, a single person who is older and on Social Security benefits cannot pass his benefits to anyone  else when he dies, but a surviving married person could obtain the benefits of his or her deceased spouse.  Repealing federal DOMA would not help this single person pass his benefits to his niece or nephew.  His money would simply go back to the U.S. Treasury.  If a man is a federal worker and he cares for his sick grandmother, repeal of federal DOMA will not help him add her to his federal health insurance and he will not receive any Social Security money when she dies, because they are blood relatives who cannot marry. A woman who takes care of her adult brother with Down’s Syndrome must pay federal tax on the insurance coverage her employer extends to her brother.

Repeal of federal DOMA will do nothing to ease these unnecessary tax burden the brother and sister described above cannot legally marry anywhere.  The benefits issues should be addressed separately and Congres should enact solutions that help everyone with the problem, not just same sex couples.

Also, several legal challenges to federal DOMA are in courts around the nation.  The most advanced cases are in Massachusetts, pending before the U.S. Court of Appeals for the First Circuit in Boston.

Links:
1. Austin Nimocks written testimony
2. The entire DOMA hearing on c-span.
3. Youtube video of Austin Nimocks testimony and Q&A

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Blog post by ADF Senior VP; Senior Counsel Gary McCaleb

At the wind-whispered south rim of the Grand Canyon, three small plaques silently praise the Creator of that stunning abyss.  “O Lord, how manifold are thy works!  In wisdom hast Thou made them all; the earth is full of thy riches” (Ps. 104:24), reads one.

Seems rather apt, one would think—and a bit ironic, for the visitor who gazes past the scripture plaques will spot such geographic features as the temples of Isis, Horus, Shiva, Zoroaster, Brahma, Krishna, Buddha, and others.  Seems the early-day map-makers had a field day with grand names from eastern religions. And none of this should really surprise any American—we have a long, rich cultural tradition of describing awe-inspiring landscapes in religious terms

But alas, where religion goes, censors soon follow—and so it was in 2003 that an ACLU paralegal shot an email to the Grand Canyon National Park superintendent, noting reports of the plaques and asking “why they were there.”  One would think that the supervisor would say, “because they reflect how we humans understand our environment” and perhaps invite the ACLU to take a hike (in the Canyon, that is).  But then a leftist group with the lovely acronym of PEER (Public Employees for Environmental Responsibility) weighed in, and down came the plaques in a hurry.

Fortunately, the superintendent did one thing right by returning the plaques to those who had put them there some 33 years before—the Evangelical Sisterhood of Mary, a group of Protestant nuns who maintain a tranquil, strikingly beautiful prayer garden in north Phoenix.  They seem quaint, quiet, and devoted to Christ.  The casual observer would think that, faced with the might of the U.S. Government, they would quail and quit the fight.

One would be wrong, though, for the Sisters have a bit of a history of dealing with despots; a history that begins with the attacks of September 11.  But not the infamous day which has dominated our last decade.  Rather, it was September 11, 1944 that marks their beginning—in a quiet university town virtually devoid of heavy industry called Darmstadt, Germany.  On that night 240 British bombers used Darmstadt as a “beta test” for the subsequent horrific firebombing of Dresden.  Over twelve thousand Germans—mostly civilians—died in that eighteen-minute air raid.  Twelve thousand, dead.

But some survived, including a handful of young Christian women who had met for some years to study the Bible—women who through the preceding decade had aligned with the “Confessing Church,” a Christian movement which rejected Nazi efforts to suborn Christianity to serve evil.  Simply put, the Confessing Church was one of the few moral bright spots in the early Nazi era, where Christians risked (and some lost) their lives by opposing Hitler.

Horrified by the bombing, and led by their teacher, Basilea Schlink, these women founded the Evangelical Sisterhood of Mary as a ministry of prayer, repentance, and reconciliation for the sins of Nazi Germany.  By 1949, the order amounted to two dozen sisters and a chapel constructed from materials scavenged from burned-out Nazi barracks.  Yet they persevered, laboring in a world decimated by global conflict, overflowing with refugees, and already threatened by the emerging cold war.  As time passed, their message of peace and charity spread from Germany to many nations. Eventually they even established a guest house in Jerusalem where the Sisters host Holocaust survivors, seeking to sooth the unspeakable wounds visited upon the Jews by the Germans.

Today the Sisters model sustainable community as a religious order; open their chapels and prayer gardens to the surrounding communities; practice acts of charity and hospitality; and engaging in communal acts of repentance and reconciliation.  And they place scripture plaques where natural beauty abounds.

The plaque project began in 1960, when Mother Basilea visited Bavaria’s Obersalzberg, noted for its striking mountain scenery—but known also for Hitler’s “Eagle’s Nest” redoubt and retreat.  Spiritually moved as she contemplated the scenery so colored by its recent history of horror, she resolved to honor the Creator by placing “praise plaques” throughout the world.

The idea took root. Today there are approximately 1000 plaques in Germany, 450 in Switzerland, 300 in Austria, 22 in Israel, and smaller numbers in, America, Angola, Australia, Brazil, Canada, Denmark, England, Finland France, Ghana, Greece, Holland, India, Indonesia, Italy, Japan, Jordan, Korea, Norway, Sweden, Singapore, Tanzania, and Uruguay.

So what of the plaques pulled from the Grand Canyon? Well, they are still there. Seems the Sisters knew ADF President Alan Sears from his visits to the prayer garden, and they knew who to call for legal help.  Once ADF, international media, and intercessory prayer came into play, the plaques were reinstalled posthaste.  And so they remained, until PEER, perhaps bored with hawking “undercover activist” boxer shorts  to raise money, awoke from an eight-year nap on the issue and began banging the media drums again.

So here we are again, with U.S. Government officials wondering what to do.  And again, ADF is happy to help them make the decision, dropping a letter to the government lawyers to explain why America should not be the first nation to censor the Sisters’ plaques.  And again, we will be in prayer—and we hope you will join us—as we deploy our faith and legal expertise to stand with our Sisters in their relentless pursuit of peace and praise!

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By ADF Senior Counsel Brian Raum

A few days after ADF posted a memo on the Internet about the methodology behind our recent scientific marriage survey, I came across an article about it on a niche website that caters to a leftist point of view.  Sometimes our critics are very clever about how they present their position, but this article, on the other hand, is amazingly embarrassing by anyone’s standards.

The article reported that “ADF didn’t disclose the poll’s methodology” and that a blogger found an ADF “internal memo” that demonstrated we had “intentionally skewed” the results of our comprehensive marriage research.  The intrigue continued as this memo between ADF and Public Opinion Strategies supposedly revealed that we “purposely” excluded bloggers, political campaign volunteers, and members of the media from the poll in an effort to reach a predetermined conclusion. Wow, that sounds bad.  And how did this smoking gun of a memo get into the wrong hands?

Well, it turns out that ADF intentionally published the not-so-secret memo on the ADF website for all to see.  The article clearly leads readers to believe otherwise, never mentioning this fact but instead simply linking to the website of a third-party blogger who admits he obtained the memo “tucked away on ADF’s site.”  (That “tucked away” place would be the primary ADF web page for the media.)

In reality, what the article describes as “intentionally skewing” the poll results happens to be well-established methodology that pollsters routinely use to obtain the most accurate results—namely, screening out members of the media, people who spend all their time posting comments on blogs, and the like.  Including such persons could have slightly skewed the results either for marriage or against marriage when all we really wanted to know is what the average American objectively thinks about the subject, no matter what the result.

Ironically, by criticizing this accepted methodology, the article tacitly admitted that, had the survey included such people, it would have skewed the results to the leftist’s point of view—meaning that the article concedes that many members of the media, bloggers, etc. are out of the mainstream in their advocacy of the homosexual agenda.

And if we’re going to talk about bias, why just take ADF to task?  After all, Public Opinion Strategies, the company that conducted the ADF survey, has conducted polls and research for NBC News, The Wall Street Journal, National Public Radio, and others.  Are they going to blast those outlets as well?

The best way to test the findings of the ADF/POS comprehensive marriage survey is to see if the results match what is already a cold, hard fact:  When virtually the same question has been presented to voters on ballots in 30 different states over whether to approve constitutional amendments protecting marriage, the integrity of marriage has been affirmed every time—by an average of 63 percent.   Compare that number to the 62 percent of Americans who affirmed marriage in the ADF/POS survey.  The proof is in the pudding.

So what of other polls that have supposedly found differently?  As I mentioned, the ADF survey asked virtually the same question that has appeared on voters’ ballots nationwide, namely should marriage “be defined as ONLY a union between one man and one woman”?  Other polls have not done this.  Instead, their results stem from how they have posed their questions, namely whether the person being surveyed favors or opposes amending the state constitution to “ban same-sex marriage” or whether it should be “legal or illegal for gay and lesbian couples to get married.”  Those questions will, of course, garner different results because of how they are phrased:  they do not match what has happened at the ballot box because they do not accurately convey how Americans feel about the definition of marriage itself.

Of course, the misleading article referred to above doesn’t really care about that, nor does it accuse these other polls of being “skewed.”  Its only apparent interest is in creating a scandal…regardless of whether it is true.

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Author: ADF Senior Counsel Brian Raum

Something is rotten in the states of America… And it isn’t the state of marriage.

Despite a relentless pop-culture, a Big Media and education establishment-led propaganda campaign, and flawed polls screaming that marriage as we know it is doomed in the U.S., support for this foundation of our society is actually alive and well.

For those who believe the support for marriage as a union between one man and one woman has gone asunder in America, we direct you to a scientific survey sponsored by the Alliance Defense Fund and completed by Public Opinion Strategies last month.

When all the numbers were tallied up from what is believed to be the most extensive national research survey of its kind to date, it was confirmed that 62 percent of Americans believe that “marriage should be defined ONLY as a union between one man and one woman.”  A majority (53 percent) of Americans strongly agreed with this sentiment, and a slim 35 percent disagreed.  This comprehensive study of 1,500 Americans’ attitudes toward marriage included research from 14 focus groups from coast to coast.

If this isn’t enough to dispel the misguided claims and misrepresentative polls posturing that marriage in America is passé, please note that this survey is a strikingly accurate reflection of official polling results from the ballot box on this issue – putting the troubled leftist pipe dream in peril.  We’re talking about election statistics spanning from 1998 to 2008, when voters from 31 states were asked to support or reject a state marriage amendment.

California, back in the ancient days of 2008, when an ultra-right-wing presidential candidate received 137 percent of the state’s vote, a marriage amendment passed, sure.  Oh wait, that’s not what happened.  Despite being outspent by $3.5 million and lacking the support of every media, entertainment, cultural, union, educational, and political power structure, marriage proponents were able to pass Proposition 8 by four percent, with 52 percent of the vote.

Note also that Smurf-Blue Maine voted in 2009 to reverse a legislatively imposed redefinition of marriage and restored marriage in the state as it’s always been understood – the union of husband and wife – nothing more, nothing less.

In the 31 states that voted on a marriage protection amendment to determine whether the definition of marriage should stay as a union between a man and a woman within their borders, 63 percent of more than 63 million voters tipped the scales at “yes.”  Only 37 percent said “no.”  That’s nearly 40 million voters affirming marriage to some 23 million rejecting it – a decisive victory for the American family.

But what about the remaining states without such an amendment protecting marriage? (The federal government, along with 45 states, has preserved the definition of marriage either through constitutional amendment or statute.)  If would-be marriage re-definers are so confident, why do they oppose “taking it to the polls” and putting this very public policy decision in the hands of the public?  Some judges have already beat voters out of their right to decide the issue.

In Iowa, the voters reacted to the state supreme court’s imposition on same-sex “marriage” on the state by – in unprecedented fashion – throwing three of the justices off the court.  Iowans would likely have ejected all seven had they been given the opportunity.  Of the five states that issue “marriage” licenses to same-sex cohabitants, none have had marriage redefinition approved by the people, with three states having it forced on them by the courts.

So, in a day and age when it appears as if marriage is about to be swept under by a relentless wave of an anti-marriage culture, all we need to do is grab our [election] boards and say “surf’s up!”  Remember, we’re riding above the wave – not below it.

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Blog by Jordan Lorence – ADF Sr. VP; Sr. Counsel

The Alliance Defense Fund has petitioned the Second Circuit to rehear the Bronx Household of Faith case en banc, which means that all eleven judges will decide whether to rehear the case. The Bronx Household of Faith case involves a challenge by the local Bronx church to a New York City school district policy that prohibits religious groups from meeting in public schools for worship services. New York City allows other community groups to meet during nonschool hours for their meetings for basically any purpose, yet singled out worship services for exclusion. However, churches and other religious groups have been meeting for worship services in the New York City public schools for nine years, after a federal district court court enjoined the worship exclusion policy in June 2002.

On June 2, the federal appeals court sitting in New York City, the Second Circuit, reversed the injunction that had been allowing the churches to meet and upheld the anti-worship service policy. If this opinion goes into effect, the school district could refuse to renew the contracts of religious groups that engage in the forbidden expression after their agreements with the school district expire at the end of June in a few weeks.

The filing of the petition for rehearing en banc halts that from happening, at least in the short term. All eleven judges on the Second Circuit must consider whether to rehear the case, to either uphold or reverse the three judges who upheld the worship exclusion policy. The eleven judges have no time deadline for considering the church’s petition for rehearing.