Marriage and Children in Perry v. Schwarzenegger

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.


20 responses to “Marriage and Children in Perry v. Schwarzenegger

  1. A blog that is dedicated to debating these issues (preserving the opposite sex definition of marriage) that you and some of the readers here might be interested in is:

    Many of your questions have been addressed there.

  2. This is not addressing the whole picture. Blankenhorn’s list of admissions were counter balanced in his book “The Future of Marriage” in chapter 7 titled “Goods in Conflict” by 24 “negative consequences” and 12 “other consequences” that as far as I understand, were never brought up by the plantiffs during the trial.

  3. FYI: I shared some of my concerns re: the “marriage debate” (reposted below) in a response to your “Cusband and Wife?” post

    Given the way things are going in our secular – individual rights orientated (moral relativism) society, there is absolutely no reason why genetic first cousins, half siblings, full siblings, genetic mother-son (“egg donor”/”donor offspring”), genetic father-daughter (“sperm donor”/”donor offspring”) shouldn’t be allowed to marry. If they are (society is) concerned with genetic flaws in offspring they could always use a “sperm/egg donor/vendor” to conceive.

    But really, what exactly is the point to the government/society giving special privileges to “marriage” when there are so many loving family arrangements that could equally benefit from these privileges. Isn’t that discriminating? (I will answer my own question – yes it is) What does “marriage” have to do with sex? What does “marriage” have to do with the number two? What does “marriage” have to do with children?

    I see that you have a link to Beyond Marriage ( Is this is where we are ultimately headed? Perhaps.

    I think the debate should focus MUCH less on adult’s sexual relationships and family choices and MUCH, MUCH more on the best interests of children – starting with the banning of anonymity and regulation of repro-tech.

    Personally, I define marriage in the traditional way – it IS discriminating by nature – because if marriage means anything then it really means nothing – but that’s just me.

  4. I believe I’ve written before that when it comes to marriage equality with regard to parenthood, lesbians seem to be requesting not equality, but preferential status when it comes to parental status to non biological parents.

    I say lesbians and not gays, because as I’ve pointed out stated before the legislations does not benefit and actually harms the status gay fathers (unless they’ve hired an egg donor and a surrogate, a far less accessible prodecure than for women.)

    The latter parenthetic point also shows how the proposed legislation promotes ART over natural conception, again not an attempt towards “equality” but for preferential status.

    • I do think that lesbians and gay men are differently situated with regard to some of the paths to parenthood, precisely because lesbians are women (who in general can give birth) and gay men are men. Thus, if you think in terms of what is needed to allow most lesbians (or any women, for that matter) to reproduce, they need sperm. While men need an egg and someone to be pregnant, which means surrogacy. There’s a lot to think through from this simple difference.

      I don’t generally agree with your first statement. I’ve discussed a number of cases seeking legal parental status for a woman not biologically related to the child in question. To the extent these cases establish a legal rule, it is one equally available to all people who are parenting a child they are not biologically related to.

      If I’ve created confusion about this, perhaps I should go back and fix it. In general, whatever rule would allow the recognition of a lesbian co-mother as a mother should work just as well for a male co-parent in the same situation.

      • I can agree that all other things being equal, women should have a slight edge over men during the infant and perhaps toddler stage- but the older the child gets, the less relevant it becomes.

      • should work as well for the male co-parent? How can the father’s partner get any rights, if the father himself can’t get any rights?

        • The historic presumption (that the husband of a woman who gives birth is the father of her child) never worked the other way round (that the wife of a man who fathered a child outside of the marriage was the mother of the child). Thus, if you work off that presumption, you end up treating women’s partners/spouses differently from men’s partners/spouses.

          It may be that if you use some sort of joint enterprise theory you ought to treat women and men the same–if one partner in the joint enterprise is a parent, then the other one should be.

          But you’ll still come back to the core problem dictated by biology–men need surrogates while women only need sperm donors. And I won’t agree that the role of the surrogate is the same as the role of the sperm donor, so those situations ought to (in my view) be analyzed separately.

          • I wrote elsewhere how the joint enterprise theory privileges ART over natural conception, as otherwise “enterprise” is generally not an important characteristic of conception.

            Turning ART into the standard bearer is not only illogical but also privileges gays to straights, and women to men as I have been saying.

            (for the record I consider natural any non- treated sperm inserted into a woman’s vagina, whether it is by hand, syringe, or intercourse)

            • I think any joint enterprise theory could apply equally to all couples, whether using ART or not. I suspect most people wouldn’t see any need for it to apply for couples using intercourse, because you’d have the genetic link. But since I don’t want to use the genetic link, I could see using it across the board. It would privilege shared intent, I suppose. (There are still elements of it I’m perplexed by, but the different treatment argument isn’t one of them.)

  5. I have no objection whatsoever to gay marriage, but I don’t see why if marriage rules are relaxed then polygamy, group marriage and incestuous marriages should also not be legalized. Why not allow all people aged 18 and over to enter into any matrimonial state they want with whomever and however many people they want.

    • Plural marriage/polygamy and incest raise different questions and concerns and so it’s possible to reach different answers.

      I was suprised a bit surprised to read that David Blankenhorn testifed that an arrangment where one man has five wives does not violate the rule that marriage be between one man and one woman, because each of the five marriages meets that requirement. In guess he means that the women are not married to each other, though the man is simultaneously married to five women.

  6. More about the bigger picture:

    National Review Online
    February 1, 2010 7:00 A.M.
    Reengineering the Family
    We can’t yet know the full consequences of our institutionalized severing of biology from parenthood?

  7. Sandy says: I have no objection whatsoever to gay marriage, but I don’t see why if marriage rules are relaxed then polygamy…..should also not be legalized Julie responds: Plural marriage/polygamy and incest raise different questions and concerns and so it’s possible to reach different answers

    I think that the present situation in Canada tends to support Sandys view. The section in the “Canadian Charter of rights and freedoms” dealing with the right to define your own type of family, was originally written with same-sex marriage in mind, but has since then been used by the “B.C polygamists” to justify their family system. This concept of “family” involves dumping 13 year old boys on the side of the road (the so called “lost boys”), and marriage between 55 year old men and 15 year old girls.

    I am sad to say that in Canada they have already slided down the slippery slope and are lying in the ditch.

    • I’m generally rather skeptical of slippery slope arguments. I think a court or a legislature could fairly easily distinguish polygamy if they wanted to. You’ve listed some concrete problems raised by polygamy right there. If those are real (can be shown to occur) then I think you’ve got yourself a basis for treating polygamy differently. Which means you don’t slide down that slope.

      • What would be the constitutional basis to forbid consenting adults to marry more than one person?

        (or to deny them the term marriage?)

        child abuse and arranged marriages can occur in monogamous contexts as well.

  8. The majority of pregnancies that I see in my practice occur without much planning, effort, or however else you would define enterprising.

  9. Julie you say: I’m generally rather skeptical of slippery slope arguments. I think a court or a legislature could fairly easily distinguish polygamy if they wanted to

    I was not putting forward a “slippery slope argument”. Canada is way ahead of America in terms of family policy. They have already descended the slippery slope. You say that a court could fairly easily distinguish polygamy. They can, but the problem is that it appears to be constitutional in Canada, because of the liberal constitution which celebrates a diversity of family structure .

    You say: You’ve listed some concrete problems raised by polygamy right there. If those are real (can be shown to occur) then I think you’ve got yourself a basis for treating polygamy differently This is what the BC authorities thought too. The irony of the BC situation is that public pressure to stop the abuse of teenage girls will now lead to a recognition of polygamy by the Supreme Court of Canada.

    I watched one of the “Bountiful” polygamist leaders, Mr. Jeff on TV. He smiled and said: “We have this wonderful thing here in Canada called “The Charter of Rights and Freedoms”, it protects men who cheat on their wifes and it protects people like us”. Then he laughed.

    I am sure that America will do better for the simple reason that they can’t do worse.

    I will maintain, that based on the Canadian experience, Sandy has a point.

  10. On the connection between gay marriage to gay family building- I have to say I would be more supportive of gay marriage if it did not come as a package deal with gay family building. Before I became aware of the connection I was more or less neutral on the whole thing; now I am opposed.

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