Although I haven’t written about it here, I’ve been following the trial in the Prop 8 case in California, more formally known as Perry v. Schwarzenegger. There’s a million places you could read about it if you like. The organization bringing the lawsuit has many links on its website and also has actual transcripts of the trial testimony, if you care to delve into that level of detail.
Of course the case is about access to marriage for same-sex couples generally, and more specifically the constitutionality of Proposition 8, which amended the California Constitution to restrict access to marriage to male/female couples. And this isn’t a blog about marriage.
But, as is generally the case, discussions about access to marriage seem to come down to discussions about parents and children. That, of course, is my topic here. In that context I’ve written about this case and about marriage litigation more generally.
The trial linkage between these two issues–marriage and parenthood–is hardly coincidental. (Most) different sex couples can reproduce without assistance of a third-party and can produce children with a direct genetic relationship with both parents, while same-sex couples cannot do the former and can only produce kids with a direct genetic connection to one parent and perhaps an indirect connection to the other.
The critical question in the case, then, becomes can you link the difference to the different treatment. More concretely, does the identified difference justify excluding the different treatment–excluding same-sex couples from the state institution of marriage.
While there have been quite a few cases on the constitutionality of restricting access to marriage, Perry is the first time there’s been an actual trial with live witnesses. Even without being able to see the proceedings (thanks to the intervention of the Supreme Court) it’s been quite the riveting spectacle. (Okay, riveting to me, anyway.)
It seems that all the parties agree that marriage is just a terrific thing. The plaintiffs would like to have access to it, while the defendants would like to preserve it, but no one questions it’s social value and centrality.
Further, everyone seems to agree that it is particularly great for kids to have married parents, whether they are parents of the same sex or parents of different sexes. (Here’s a list of admissions from a David Blankenhorn, a defense expert, that the plaintiffs are particularly happy about.) What’s perhaps most striking to me is that Blankenhorn agreed that denying same-sex parents the right to marry does harm to their families.
The challenge for the defendants, then, is to explain why harming the same-sex families by denying them marriage is constitutionally permissible. This requires the defendants to articulate some harm that would be suffered by different-sex couples were the same-sex couples permitted to marry.
That’s actually a pretty tall order. One suggestion was that fewer different-sex couples would marry if same-sex couples were permitted to marry. It’s hard for me to see exactly why this would be so and I wonder if, in fact, the rates of marriage for different sex couples have fallen in Massachusetts, where same sex couples have been able to marry for five years or so.
A more promising argument for the defendants might be that allowing same sex couples to marry would weaken the link between marriage and procreation–after all, those same sex couples would not be marrying in order to procreate.
But many might well be marrying in order to provide a secure situation in which to raise children. Indeed, this trial has been replete with evidence about how beneficial marriage is for children and so it seems to me at least as likely that allowing same sex couples to marry would affirm the link between marriage and child-rearing.
Is the suggestion then that different sex couples who might have procreated in order to raise children would instead be tempted to adopt and thus raise non-genetically related children? Apart from the fact that the premise seems absurd, I also don’t see the harm. Are we really worse off if a few more heterosexual couples adopt kids?
Before I leave off, I feel compelled to observe that I am not especially happy about some of the linkages the plaintiffs have argued. As I’ve written before, I believe women should have the option to choose single-motherhood and, more generally, people should have the option to choose t parent singly. The fact that you haven’t found a (or aren’t looking for) a life partner, doesn’t mean you cannot be a terrific parent. But the arguments made by the plaintiffs in this case–that marriage is essential to the well-being of children–doesn’t make it any easier.