Utah State Capitol Building  in Black and White

Testimony in favor of Senate Bill 196 (Health Education Amendments)

Statement as prepared by William C. Duncan, senior fellow at Sutherland Institute, who testified in favor of SB 196 – Health Education Amendments, on Feb. 21, 2017, before the Senate Education Committee of the Utah Legislature:

The core policy of Utah as it relates to sex education today recognizes that marriage is the only appropriate setting for sexual activity and that this subject is best understood when parents are highly involved in that education. If Senate Bill 196 were approved, that would still be the policy of the state.

So, what would change? The state would not be singling out an identifiable group in the statute. That would mean, practically, that the state would not be vulnerable to a lawsuit challenging that provision, which under current Supreme Court precedent, might invite federal court micromanagement of Utah’s curriculum.

Utah ranks #1 for family prosperity

A joint project by Sutherland Institute and the American Conservative Union Foundation found Utah ranks first in the nation according to the Family Prosperity Index, or FPI. The FPI measures more than 50 of the economic and social factors that indicate family prosperity, including but not limited to marriage and divorce rates, crime rates, STD rates and household income. A state that scores well on the FPI is one that is moving toward the goal of creating family prosperity. 

This new study found Utah dominates the 2016 Family Prosperity Index, not only ranking at the top but also holding commanding leads over the second-ranked state and the national average. In fact, Utah’s FPI score has increased by 3.6 percent over the last five indexes – from 7.12 in 2012 to 7.38 in 2016. The FPI national average is normalized at 5.0. 



From Sutherland Institute President Boyd Matheson:

“Of all the awards and accolades Utah has received, this may very well be the most significant. While Utah has long recognized family as a critical social engine, this report illustrates the power of the family as an economic engine. Lawmakers would be wise to recognize that just as a strong economy helps families, strong families strengthen economies.” 

From Sutherland Institute Director of Public Policy Derek Monson:

“Rather than measuring and ranking a stand-alone niche of Utah’s economy that many never see or experience, the Family Prosperity Index measures whether Utah’s economic prosperity is reaching Utah’s families, and how Utah’s families are driving Utah’s economic prosperity. Clearly, Utah has room to improve in its most populous county when it comes to the related issues of drug use and suicide – and these are critically important things that demand our attention. But Utahns can be proud in our understanding that we lead the nation economically because we lead the nation in how we create, build and devote ourselves to our families, and by extension our communities.”

From American Conservative Union Foundation Chairman Matt Schlapp: 

“The Family Prosperity Index provides a blueprint for creating an environment for families to flourish, and Utah, with its No. 1 rank on the 2016 FPI, has set the standard for the rest of the country. I hope leaders across the county will come to understand the factors driving Utah’s success and use the FPI as a tool to expand prosperity in their own states.”


  • Six indexes (and their corresponding sub-indexes) make up the FPI: Economics, Demographics, Family Self-Sufficiency, Family Structure, Family Culture, and Family Health. All sub-indexes can be viewed in the attachment.
  • Utah takes the lead in every index aside from Economics, where North Dakota comes in first. This data was impacted by North Dakota’s fracking boom, which has since slowed.
  • An area of concern for Utah includes the drop in the Family Health index caused by the self-mortality sub-index, which consists of suicide and drug overdoses as a percent of population. Utah has higher-than-average rates.
  • Additionally, a county-level FPI analysis raises alarms for Salt Lake County. Negative trends are noted when it comes to children in poverty, violent crime rate, property crime rate, the level of married taxpayers, and unwed child birth.


Vision for Religious Freedom

True equality requires the protection of religious liberty. Religious freedom ensures equal treatment for all of God’s children.

To understand the former, one need only contemplate the contradiction in values, morals and logic contained in this scenario: A demand for equality leads to legal protection of an individual’s right to their core belief and expression regarding sexuality, but leads to legal prosecution of another individual for exercising their right to their core belief and expression regarding God. That is, in fact, a form of intolerance and inequality masquerading as equality.

To understand the latter, one need only ponder the historical fact that religion was a driving force behind the abolition of the English slave trade, the emancipation of American slaves, and the American civil rights movement. Reverend Martin Luther King, Jr. did not lead America’s civil rights movement in spite of his religious identity, but because of it.

Very early on in America’s history, Alexis de Tocqueville noted: “Religion, which, among Americans, never mixes directly in the government of society, should therefore be considered as the first of their political institutions; for if it does not give them a taste for freedom, it singularly facilitates their use of it.”[1] Part of what Tocqueville meant is that religion shapes the experience of citizenship. It is easy to see then, why the freedom to practice religion is critical to the nation’s order and character.

The interconnectedness of religion, equality and freedom is uniquely American. Other nations have viewed religious freedom in different ways. The French Revolution’s 1789 Declaration of the Rights of Man had a “religious freedom” provision, which subordinated the right to the perceived interests of the state: “No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.” This approach allowed for unfettered freedom to believe, but severely constricted the ability to act on or express that belief.

Even the charter of the Soviet Union guaranteed “freedom of religious worship,” which looked nothing like what Americans would recognize as freedom. The governing principle of Communist Russia was that everyone was free to believe what they would like, but with the caveat that expressing those beliefs in contradiction to the laws and will of the state would be severely punished. In practice, even the guarantee of freedom of belief was never honored.

Contrast the foreign ideas of freedom of religious views and religious worship to the American principle of religious freedom. Religious freedom is core to the way Americans constitute ourselves as a people. The pursuit of religious liberty motivated the establishment of America’s second English colony in 1620 in Plymouth, Massachusetts. Religious freedom also holds a unique place in our constitutional order: It is literally the first freedom protected in the Bill of Rights.

Religious freedom in the Constitution is found in two places. The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” There is also a provision in the text of the original Constitution, less remarked upon, but no less important. Article VI says that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

Taken together, these provisions, and similar ones in the constitutions of each state, show that the American ideal is one of robust protection for religious belief, worship and expression in the public square. These protections include three connected principles:

  1. All human beings should be free in their religious beliefs and practices without suffering persecution or official discrimination, except in the rare instances where a religious practice compromises a compelling governmental interest (e.g., protecting innocent life).
  2. Religious organizations must be free to determine doctrines and practices, including standards for membership, and to carry out their activities without government interference.
  3. No one should be forced by the government to affirm or support beliefs to which they do not freely ascribe.

Despite the robustness of the American principle of religious freedom contained in the Constitution, limited conceptions of religious freedom have their advocates in the modern United States. There has been a rhetorical shift among some to speak of a “freedom of worship.” This means that churches and individuals can believe and teach what they like, and perhaps even select their own clergy and perform their own ceremonies, but this “freedom” essentially ends outside the door of the meetinghouse, mosque, cathedral or synagogue.

For instance, a prominent government official recently argued that religious freedom was merely a “code word” for darker motives, such as hate for a particular group of people – the implicit suggestion being that the government can restrict the freedom of people of faith if their beliefs conflict with the official government-endorsed ideology: discriminating against religious people because of their beliefs, in the name of anti-discrimination.

A related notion is that other protections, like freedom of speech, are adequate to protect religious people. Thus, a recent Supreme Court decision dismissed concerns about religious organizations and individuals being asked to facilitate conduct at odds with their beliefs by saying that they still have the ability to verbally express their teachings. But the freedom to state one’s core beliefs becomes largely meaningless without its intended companion: freedom to live according to those core beliefs.

A free society prioritizes religious freedom. It recognizes what Tocqueville observed, that religious devotion fosters accountability that, in turn, secures the qualities in citizens that allows for a broadly tolerant and pluralistic community that is both safe and open. It also recognizes America’s historical reality: that religion is tied to equality, and without religious freedom equality would not exist in its current form in America.

With very rare exceptions – the damaging effects of which can be alleviated by existing constitutional principles – religion inculcates in its adherents a spirit of civility and public-spiritedness that allows a free society to flourish. It motivates individuals to come together to care for those who are less fortunate and to protect those otherwise excluded from the bounties of a prosperous nation.

Religious freedom is a foundation of a decent, equal and free society.


[1] Alexis de Tocqueville, Democracy in America 280 (translated by Harvey C. Mansfield & Delba Winthrop, 2000).


Law professor on how Utah balanced religious freedom, LGBT rights

This week we had the opportunity to converse with Robin Fretwell Wilson, professor at the University of Illinois College of Law. Professor Wilson talked about what Utah got right as it worked to balance religious freedom with LGBT rights in the 2015 general legislative session.

Well, I think the most remarkable thing is you have the reddest state in America extending more protections to the LGBT community than even a very blue state like New York did. In other words, Utah went the distance and protected transgender people who are not expressly protected in New York and in exchange for that, it got ahead of the curve on same-sex marriage and doesn’t find itself flat-footed like the rest of the country right now where you have marriage clerks resigning and you have state offices closing down the marriage function, which I think is wrong, and you don’t have questions about whether a religious group’s tax exemption is going to be at risk.

All that gets buttoned down in the “Utah Compromise” and what I call marriage conscience protections, as well as some innovative pieces, like if you say something in a non-professional setting – think about saying something at a religious meeting on Sunday, like “marriage is between a man and a woman,” in your view, and then walk into your real estate business on Monday – nobody can yank your real estate license. That’s new; that hasn’t been there in other states.

There has to be a forum for every Utahn to be married, in every county, but the county can dispatch that duty in a way that means no religious objectors who have been working at those offices can be fired, except for the [County] Clerk who has been elected. The [County] Clerk can basically outsource this function to any authorized celebrant in the community whether that’s a religious figure or a judge; whoever volunteers. And everybody is treated the same way; it’s seamless. So, a same-sex couple comes in and they get the same treatment as a straight couple.

Continuing, Robin Wilson noted:

Utah actually has workplace speech protections both inside and outside the workplace that are really important in the sense that they protect political and religious speech about marriage, family and sexuality. But they’re two-way-street provisions so if a kid goes to an Equality Utah parade on the weekend he can’t come into the burger joint [where he works] on Monday and be fired for that – and neither can somebody who gave $1000 to Prop 8 be fired for doing that outside the workplace. It’s nobody’s business.

Inside the workplace, there’s a bigger role for the employer to say, ‘Hey, I don’t want any kind of speech about marriage, family or sexuality’ – but if they allow it, if they don’t want to bar that because it conflicts with their essential business purposes, then they have to allow it on the same basis whether it is pro-gay marriage [or] anti-gay marriage, but to the extent that the employer wants to say, ‘Nobody’s going to be talking about that at all,’ then they can tell [his or her employees] that [they’re] not going to be able to do that.

Professor Robin Wilson then concluded with these observations:

Everybody is going to have the urgency of deciding how you’re going to deal with marriage in a world in which legislatures did not get in front of this problem. I think those marriage protections – things like saying if you did religious counseling about marriage before [the U.S. Supreme Court validated] same-sex marriage you can do the same thing after and if that meant you dealt with traditional heterosexual married people only, then you can do that after. Those kinds of things are going to need to be put in state-wide law if there are municipal laws that say otherwise or if an organization contracts with the state or is tax-exempt or for a variety of other reasons. I think the way forward there is not to try to do legislative cram-downs. In other words, just because you have the votes doesn’t make it right. It’s going to go better if everybody is trying to think about a civil society where we live together in peace.

For Sutherland Institute, I’m Dave Buer. Thanks for listening.

This post is a transcript of the Sutherland Soapbox, a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

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And they’re off …

In the wake of the Supreme Court’s ruling on same-sex marriage, several articles were published by Politico portraying the future of cultural and social policy debates. Some are rather astounding, in that they proved – on the very day that same-sex marriage was made the law of the land – that conservative concern about the impacts of same-sex marriage are 100 percent correct. Below is a summary of where the unbalanced progressive vision for “equality” promises to take us next.

It’s Time to Legalize Polygamy

This article highlights how all of the fundamental issues raised in support of same-sex marriage logically call for legalization of polygamy as well. For the conservative and reasonable non-conservatives, the author’s argument also highlights the incoherence of progressive support for same-sex marriage and opposition toward plural marriage:

That’s one reason why progressives who reject the case for legal polygamy often don’t really appear to have their hearts in it. They seem uncomfortable voicing their objections, clearly unused to being in the position of rejecting the appeals of those who would codify non-traditional relationships in law. They are, without exception, accepting of the right of consenting adults to engage in whatever sexual and romantic relationships they choose, but oppose the formal, legal recognition of those relationships. They’re trapped, I suspect, in prior opposition that they voiced from a standpoint of political pragmatism in order to advance the cause of gay marriage.

In doing so, they do real harm to real people. Marriage is not just a formal codification of informal relationships. It’s also a defensive system designed to protect the interests of people whose material, economic and emotional security depends on the marriage in question. If my liberal friends recognize the legitimacy of free people who choose to form romantic partnerships with multiple partners, how can they deny them the right to the legal protections marriage affords?

The left’s willingness to embrace tactics and arguments they decry as hateful, bigoted and intolerant if used by conservatives has always been a curious, but enlightening, insight into the ideological mindset of a progressive. From this ideological viewpoint, you are an intolerant bigot if you deny to a loving homosexual relationship the social recognition and benefits that marriage affords. But if progressives see that person as a bigot, how do they see themselves when they then deny the dignity and recognition of marriage to loving polyamorous relationships? As rational and intelligent human beings, in theory they should recognize the “intolerance” and “hate,” as they define those terms, underlying such a position. And yet, they embrace them anyway for the sake of ideology and politics. The impact that justifying such an irrational and hypocritical stance must have on the mind and the soul is unnerving.

Gay Marriages are Better than Straight Ones

This article makes the argument that same-sex marriages are superior to man-woman marriages because men and women are fundamentally different, and by definition those differences do not exist in a same-sex relationship. This leads, the author contends, to superior communication and conflict-resolution capacity, and to benefits in equality of gender roles and empathy.

In other words, the article is contending that the decades-long consensus of social science that marriage between men and women is the best relationship for everyone involved (especially any children that result) is rubbish. Rather, in the ideology of the progressive, we ought to view the marital relationship between two men and two women as the social ideal. And the inconvenience presented by the last half-century or so of social science research? Just ignore it.

The most intriguing part of this article is its admission that “[a]s trite and overdone as the cliché ‘men are from Mars and women are from Venus’ may be, it does contain a grain of truth: Men and women are fundamentally different in certain ways. …” It’s intriguing because the human reality of gender differences is a foundation of the conservative argument that the best marriage policy for society is one based on the authentic definition of marriage: a relationship between a man and a woman that is naturally inclined toward the bearing and rearing of children.

These gender differences create the well of potential benefits that marriage offers to husbands, wives, the children their relationship conceives, and the community and society around them. On the other hand, the progressive legal argument for same-sex marriage relied heavily on a total lack of difference between men and women to argue that same-sex marriage is a matter of equality. To start denying that fundamental assumption on the very day that it is declared to be a matter of fundamental constitutional rights is both ironic and breathtakingly incoherent.

Perhaps feeling more secure in their legal victory, progressives are more comfortable acknowledging the practical realities of human nature and existence that they denied so long because they are at odds with their ideology and political agenda. Whatever the case, it is rather amazing to see them embracing those points now that they can serve a purpose for their political agenda.

These articles make clear that – despite the hopes of some politicians to avoid the difficulties that sexual politics creates for them in things like elections – liberal progressives will continue to push their ideology as they continue to attack the social realities, institutions, and policies that do not conform with their articles of political faith.

Photo credit: Fæ via Wikimedia Commons


Sutherland statement on Supreme Court same-sex marriage ruling

For millennia, marriage has been recognized in virtually all known human societies as the union of a husband and wife. As such, marriage encouraged those whose relationship alone could create a child to commit to one another and to any children their union would produce. The security of their bond provided a stable foundation for both them and their children to flourish. Their union also could provide their children the unique, and uniquely valuable, contributions of both a mother and father. In most instances, the children would also be ensured of a real tie to their biological parents. Marriage, even when children were not possible for the couple, powerfully demonstrated the equal contributions of men and women to a family.

The U.S. Supreme Court has now said this understanding of marriage is prohibited by the majority’s interpretation of the Constitution.

That is clearly wrong. Nothing in the language or intent of the 14th Amendment prohibits the states from recognizing the glaring reality that men and women are different and that an institution made up of both is different from one in which either is excluded. No reasonable Court precedent or interpretation requires the states to pretend that children are not entitled to a married mother and father wherever possible.

The Court’s decision reflects a growing opinion among government and other elites that adult interests should be prioritized over those of children and that marriage is nothing more than a government’s way of dignifying adult lifestyle arrangements.

No matter how powerful the adherents of this view, it is woefully inadequate for grappling with the large realities societies have always faced and which have not diminished (quite the contrary). We still need to connect mothers and fathers to one another and their children.

With the Supreme Court’s decision, we also have to grapple with a much newer challenge — protecting the ability of those who still recognize the value of the old wisdom about marriage to speak freely about their beliefs and associate with others who do so as well, without having their livelihoods threatened.

Indeed, these two challenges interact. We need strong, persuasive voices encouraging men and women to marry and commit to one another and to the children they rear together. The problem, however, is that a majority of the justices on the Supreme Court have labeled that view as a form of “discrimination.”

This means that we must be vigilant in preserving and securing protections for freedom of religion, association and speech.

It also means that we must continue to make the case for marriage — that children deserve a relationship with their own mother and father, committed to each other through marriage, or with a married mom and dad when their own parents cannot raise them. That men and women are different, not interchangeable parts in a family.

It will take courage to continue to advocate for marriage as the union of husband and wife, but we owe that much to our fellow citizens whose freedoms are implicated and to children whose entitlement to a married mother and father has been ignored in this decision.

Strong new defense of the constitutionality of marriage

courthouse17483The Heritage Foundation has just published a strong piece of legal analysis by Ryan Anderson and Gene Schaerr on the same-sex marriage issue. Anderson is a prominent defender of marriage as the union of a man and a woman, and Schaerr defended Utah’s marriage law in court at a significant professional sacrifice.

The analysis demonstrates that nothing in the U.S. Constitution requires states to redefine marriage.

Here are some highlights:

Those suing to overturn the marriage laws in the four states covered by the Sixth Circuit (Ohio, Kentucky, Michigan, and Tennessee) thus have to prove that the man-woman marriage policy that has existed in the United States throughout our entire history is prohibited by the U.S. Constitution.

The only way someone could succeed in such an argument is to adopt a view of marriage that sees it as an essentially genderless institution based only on the emotional needs of adults and then declare that the U.S. Constitution requires that the states (re)define marriage in such a way. Equal protection alone is not enough. To strike down marriage laws, the Court would need to say that the vision of marriage that our law has long applied equally is just wrong: that the Constitution requires a different vision entirely.

The U.S. Constitution, however, is silent on what marriage is and what policy goals the states should design it to serve, and there are good policy arguments on both sides. Judges should not insert their own policy preferences about marriage and declare them to be required by the U.S. Constitution any more than the Justices in Dred Scott should have written into the Constitution their own policy preferences in support of slavery.

That, of course, is not to suggest that same-sex marriage is itself comparable to slavery. The point is simply that, as in Dred Scott, this is a debate about whether citizens or judges will decide an important and sensitive policy issue—in this case, the very nature of civil marriage.


A legal challenge to these state marriage laws cannot appeal successfully to the text or original meaning of the Fourteenth Amendment. The text, invoking American citizens’ “privileges or immunities,” the “equal protection of the laws,” and the “due process of law,” nowhere mentions marriage. Back in the 1860s, could anyone who drafted that amendment or any of the citizens who voted to ratify it have reasonably thought that it could be used to invalidate state marriage laws defining marriage as a man-woman union?

Imagine, for example, how President Lincoln — an accomplished lawyer and an ardent opponent of Dred Scott — would have reacted if the amendment had been introduced before his death and someone had suggested that it might one day be interpreted to require states to recognize same-sex marriages. He would have viewed that suggestion as preposterous. There has never been any general right, he would have said, to marry anyone you claim to love, so a state’s rejection of that claimed “right” could not possibly be a denial of due process.

Lincoln would also have noted the similarities between Dred Scott and a decision imposing same-sex marriage. As distinguished law professor Michael Stokes Paulsen has elegantly argued, “in the structure and logic of the legal arguments made for judicial imposition of an across-the-board national rule requiring every state to accept the institutions [of slavery and the redefinition of marriage], the two situations appear remarkably similar.”[5]

Moreover, unlike miscegenation laws, the man-woman definition of marriage does not offend the Amendment’s equal-protection guarantee because it allows any otherwise qualified man and woman to marry, regardless of their sexual orientation or other circumstances. The fact that the institution of marriage, rightly understood, may be more attractive to some of a state’s citizens than others does not mean that a state violates the Fourteenth Amendment simply by refusing to redefine the institution to make it more attractive to more romantic partnerships.


Nor can a challenge reasonably appeal to the Supreme Court’s Windsor decision, which was written by Justice Anthony Kennedy and applied the Fourteenth Amendment’s protections in striking down a portion of the federal Defense of Marriage Act (DOMA). Whether it was right or wrong as to DOMA, Windsor strongly supports the authority of states to define marriage: Every single time that Windsor talks about the harm of DOMA, it mentions that the state had chosen to recognize the bond that the federal government was excluding. Every single time, Justice Kennedy expressly said it was Congress’s deviation from the default of deference to state definitions that drove his opinion.

Kennedy’s opinion for the Court hinged on the reality that “[t]he significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning.”[9] “The definition of marriage,” Windsor explained, is “the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.’”[10] . . .

Windsor also taught that federal power may not “put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.”[12] Yet since that time, the federal government — through federal judges — has repeatedly put its thumb on the scales to influence a state’s decision about its own marriage laws — all the while claiming that Windsor required them to do so.


As the Supreme Court held in Glucksberg in rejecting a fundamental right to assisted suicide, fundamental rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if they were sacrificed.”[14]

Clearly, a right to marry someone of the same sex does not fit this description. As the Supreme Court explained in Windsor, including same-sex couples in marriage is “a new perspective, a new insight.”[15]Same-sex marriage is not deeply rooted in the nation’s history and tradition; thus — whatever its policy merits — it cannot be a fundamental right under the Due Process Clause. Windsor correctly observed that “until recent years…marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.”[16]

Whenever the Supreme Court has recognized marriage as a fundamental right, it has always been marriage understood as the union of a man and woman, and the rationale for the fundamental right has emphasized the procreative and social ordering aspects of male-female marriage. None of the cases that mention a fundamental right to marry deviate from this understanding, including decisions that struck down laws limiting marriage based on failure to pay child support,[17] incarceration,[18] and race.[19] Those decisions took for granted the historic, common law, and statutory understanding of marriage as a male-female union having something to do with family life. Thus, a challenge to state male-female marriage laws cannot appeal successfully to the fundamental-rights doctrine under Glucksberg.


To be sure, the Supreme Court has ruled that entering into and having the government recognize a marriage—understood as a union of husband and wife—is a fundamental right, but if this right is redefined to be understood simply as the committed, care-giving relationship of one’s choice, where does the logic lead? Justice Sonia Sotomayor asked this of Ted Olson, the lawyer for the same-sex couples, during oral argument in California’s Proposition 8 case, and he had no answer. If marriage is a fundamental right understood as consenting adult love, Justice Sotomayor asked, “what State restrictions could ever exist,” for example, “with respect to the number of people … that could get married?”[25]


From a policy perspective, marriage is about attaching a man and a woman to each other as husband and wife to be father and mother to any children their sexual union may produce. When a baby is born, there is always a mother nearby: That is a fact of biology. The policy question is whether a father will be close by and, if so, for how long. Marriage, rightly understood, increases the odds that a man will be committed to both the children that he helps to create and to the woman with whom he does so.[44] The man-woman definition of marriage reinforces the idea — the social norm — that a man should be so committed.

The man-woman definition, moreover, is based on the anthropological truth that men and women are distinct and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children deserve a mother and a father. Even President Barack Obama admits that children deserve a mother and a father[.]


In addition to financial incentives, as ample social science confirms, this combination of state-sanctioned status and benefits also reinforces certain child-centered norms or expectations that form part of the social institution of marriage. Those norms — such as the value of gender-diverse parenting and of biological connections between children and the adults who raise them — independently encourage man-woman couples “to stay together for purposes of rearing offspring.” Given the importance of those norms to the welfare of the children of such couples, the state has a compelling interest in reinforcing and maintaining them.

Most of those norms, moreover, arise from and/or depend upon the man-woman understanding that has long been viewed as central to the social institution of marriage.[47] For example, because only man-woman couples (as a class) have the ability to provide dual biological connections to the children they raise together, the state’s decision — implemented by the man-woman definition — to limit marital status and benefits to such couples reminds society of the value of those biological connections. It thereby gently encourages man-woman couples to rear their biological children together, and it does so without denigrating other arrangements — such as adoption or assisted reproductive technologies — that such couples might choose when, for whatever reason, they are unable to have biological children of their own.

Like other social norms traditionally associated with the man-woman definition of marriage, the biological connection norm will be diluted or destroyed if the man-woman definition (and associated social understanding) is abandoned in favor of a definition that allows marriage between “any two otherwise qualified persons” — which is what same-sex marriage requires. And just as those norms benefit the state and society, their dilution or destruction can be expected to harm the interests of the state and its citizens.

For example, over time, as fewer heterosexual parents embrace the biological connection norm, more of their children will be raised without a mother or a father. After all, it will be very difficult for the law to send a message that fathers and mothers are essential if it has redefined marriage to make fathers or mothers optional, and that in turn will mean more children of heterosexuals raised in poverty, doing poorly in school, experiencing psychological or emotional problems, having abortions, and committing crimes — all at significant cost to the state.

In short, law affects culture. Culture affects beliefs. Beliefs affect actions. The law teaches, and it will shape not just a handful of marriages, but the public understanding of what marriage is. Consider the impact of no-fault divorce laws, which are widely acknowledged to have disserved, on balance, the interests of the very children they were supposedly designed to help. By providing easy exits from marriage and its responsibilities, no-fault divorce helped to change the perception of marriage from a permanent institution designed for the needs of children to a temporary one designed for the desires of adults. Thus, not only was it technically much easier to leave one’s spouse, but it was psychologically much easier as well, and the percentage of children growing up with just one parent in the home skyrocketed, with all of the attendant negative consequences.

This analysis also explains why a state’s decision to retain the man-woman definition of marriage should not be seen as demeaning to gay and lesbian citizens or their children and why it satisfies any form of heightened scrutiny. In the early 2000s, in the face of state judicial decisions seeking to impose same-sex marriage under state law, the definitional choice a state faced was a binary one: Either preserve the man-woman definition and the benefits it provides to the children (and the state) or replace it with an “any two qualified persons” definition and risk losing those benefits.

There is no middle ground. A state’s choice to preserve the man-woman definition is thus narrowly tailored — indeed, it is perfectly tailored — to the state’s interests in preserving those benefits and in avoiding the enormous societal risks that accompany a genderless-marriage regime. Under a proper means-ends analysis, therefore, a state’s choice to preserve the man-woman definition passes muster under any constitutional standard.

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Why Senate Bill 297 is necessary

At this time, the state of Utah has been required to recognize same-sex marriages by court order. The court order did not address some of the foreseeable consequences of redefining marriage in the state, such as implications for religious liberty.

By contrast, the anti-discrimination legislation (SB296) contains provisions that attempt to balance the response to mistreatment of individuals in housing and employment with the need to preserve crucial religious freedoms.

The fact that same-sex marriage has come to Utah by court order has prevented this kind of balance, so the Legislature needs to act to ensure that religious liberties are considered in the context of same-sex marriage.

SB297 provides necessary religious liberty protections:

  • No public official will be forced to perform marriages if it would violate their religious beliefs (while still allowing any person to get their marriage solemnized).
  • Religious officials and religious organizations will not have to recognize or perform marriages that conflict with their teachings.
  • Religious officials and religious organizations will not be prohibited from solemnizing marriages just because they will not perform marriages that conflict with their teachings.
  • Religious officials and religious organizations will not be forced by the state to “provide goods, accommodations, advantages, privileges, services, facilities, or grounds for activities connected with the solemnization or celebration of a marriage that is contrary to that religious official’s or religious organization’s religious belief.”
  • Religious officials and religious organizations will not be forced to promote marriages that conflict with their teachings in any programs or activities.
  • Government cannot penalize a religious official or religious group for exercising these rights.
  • Licensing, certification and accreditation processes can’t be used to punish people for their beliefs about marriage, family and sexuality.
  • Religious officials and religious organizations will not be forced by individuals to “provide goods, accommodations, advantages, privileges, services, facilities, or grounds for activities connected with the solemnization or celebration of a marriage that is contrary to that religious official’s or religious organization’s religious belief.”

The bill also provides legal remedies for those whose rights are violated under the new law.

Of course, these are not the only religious liberties that need protecting (note: there are also significant exemptions and religious speech protections in SB296) but SB297 is an important start to minimize the potential harms of radical court decisions on marriage.

The tradeoffs of postponing marriage past your mid-20s

wedaccentsI’ve been reading an interesting book about family policy and came across a brief passage that said while one should wait until at least the mid-20s to marry, it was “better still” to wait until “your early thirties, if you want to reduce the risk of divorce.” Others promote later marriage because it’s associated with an increase in women’s earnings.

In a recent piece in the Washington Post, sociologist W. Bradford Wilcox notes there are tradeoffs in the decision to postpone marriage past the mid-20s. In sum, the extra decade could result in a 4 percent decrease in the risk of divorce but at the cost of decreased marital happiness. Specifically, he points to a University of Texas study that showed:

Analysis of data from five American data sets indicated that the later marriages fare very well in survival but rather poorly in quality. The greatest indicated likelihood of being in an intact marriage of the highest quality is among those who married at ages 22–25, net of the estimated effects of time since first marriage and several variables that might commonly affect age at marriage and marital outcomes. The negative relationship beyond the early to mid-twenties between age at marriage and marital success is likely to be at least partially spurious, and thus it would be premature to conclude that the optimal time for first marriage for most persons is ages 22–25. However, the findings do suggest that most persons have little or nothing to gain in the way of marital success by deliberately postponing marriage beyond the mid-twenties.

Dr. Wilcox explains some of the benefits of marrying in your mid-20s that will make sense to many people:

  • “[Y]ou are more likely to marry someone who shares your basic values and life experiences, and less likely to marry someone with a complicated romantic or family history. … Marrying at this stage in your life also allows couples to experience early adulthood together.”
  • “Women who marry in their 20s generally have an easier time getting pregnant, and having more than one child, than their peers who wait to marry in their thirties. You’ll also be around to enjoy the grandchildren for longer.”
  • “You’re less likely to lose the best possible mate for fear of getting started too young on the adventure that is married life.”

This paraphrase of James Thurber is wonderfully apt: “Love is what you go through together.” So, when you meet the right person in your 20s, why wait?