Perry v. Schwarzenegger III: And My Point?

This is a continuation of a thread I started about a week ago, occasioned by my reading Perry v. Schwarzenegger in preparation for a class I am teaching.    (You’ll want to pick up those earlier posts to make sense of this one.) 

I’ve been focused on a couple of Judge Walker’s findings about the relationship between being a parent and being married.   In support of his ultimate finding that denying access to marriage to same-sex couple violates the United States Constitution, Judge Walker essentially concludes that it would be better for the children of lesbian and gay parents if they (the parents) were married.  

To avoid any misunderstanding, let me say at the outset that I agree with the conclusion Judge Walker reaches as to access to marriage for same-sex couples.   It’s hard for me to see what possible harm would be done to the institution marriage by the inclusion of same-sex couples.    Indeed, the defendants’ case before Judge Walker failed because they could not produce any evidence of harm to the institution of marriage caused by the inclusion of lesbian and gay couples.   Frankly, to the extent one is concerned that marriage is becoming less respected as a social institution, you would think that the surge of lesbian and gay couples affirming the extraordinary importance of marriage would be most welcome to those who are generally supportive of marriage.  

Which rather brings me round to the point I was working towards with the last two posts.  I am happy to say that two people should be allowed to get married, even if they do happen to be the same sex.   And that’s true whether they have children or not.  But I would also like a couple (same-sex or otherwise) to be able to decide not to get married without it seeming like a gross disregard for th welfare of their child or children.   Put slightly differently, I do not wish to make marriage compulsory for couples raising children.

I don’t mean “compulsory” in the sense of legally required.   I mean “compulsory” in the sense of socially or culturally required.   Strong social expectations, fed by convictions that marriage is better for children, can leave people with little choice but to marry.   To choose not to marry (and thus place one’s children at risk) seems unacceptably selfish. 

Yet the evidence produced at trial, impressive though it is, doesn’t really show that particular children of particular people will necessarily benefit if their parents marry.   A unmarried couple that is contentedly raising children will not suddenly become better parents by virtue of getting married.  

It’s true that more and different sorts of benefits might become available to them if they get married, but I’d sooner see the benefits extended to people who aren’t married than to make the structure of the benefits the reason to marry.  This, too, is a form of compulsion.  

I think to about people who have chosen to be single parents.   Do they need to find, as quickly as possible, a spouse (of whatever sex)?   Surely they could be fine parents and not be married.   I’m no thinking here of people who are single-parents by circumstances not of their choosing, but rather those who are single mothers or single fathers by choice.  

Having spent a lot of time with the opinion recently, I think on the whole Judge Walker did a terrific job.  His opinion is careful and compassionate and well-supported.   The conclusions about the benefits of marriage do important work within his opinion.   I suppose what I am worried about is the spillover effect–the over-generalization that may follow and that may make it harder to be a parent without being married.

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8 responses to “Perry v. Schwarzenegger III: And My Point?

  1. I’m sorry but can you please clarify again: Did the judge conclude that children of married parents benefit when their parents are married to eachother, or to another party?

    You seem to be saying that the judge concluded that children of one parent, married to another party not their parent, still benefit. I find it very hard to believe that evidence support that.

  2. Since gay partners who parent children together tend to parent children of only one of the partners, my question above is a crucial distinction.

    In any event, I do not believe that the conclusions regarding children of heterosexual couple are automatically applicable to homosexual parents, and among them, I am not sure the conclusions regarding lesbians would be applicable to gays.

    It seems to me that the primary difference gay marriage makes, is in the automatic recognition of the partner as parent. Since we have so little data on the welfare of children in these circumstances, I feel that any ruling on gay marriage based on the children’s welfare, is based strictly on conjecture and not on evidence.

    Since I oppose the automatic recognition of the partner as parent, at least until we know more about the subject, I oppose gay marriage as long as the two are linked.

    Note: Julie has consistently supported a “de facto” parent position. I am not opposed in theory although in practice my criteria is probably much narrower. But gay marriage in its current construction as being linked to automatic recognition, actually undermines that concept.

    • Kisarita
      I had not thought to oppose gay marriage on that basis. What do you think of the laws that let step-parents in straight marriages list themselves as being the parent of their spouse’s offspring? Do you oppose marriage in general because of that? I don’t oppose straight marriage on that basis so I don’t think I can oppose same sex marriage on that basis or I’d be a hypocrite.

      I don’t think its right for the law to assist people in falsifying their identity in relationship to a child regardless of their sexual preference. I would like to help change that law somehow.

      • I think many–maybe even most?–people wouldn’t agree with your use of the term “step-parent.” A step-parent is, I think, generally understood as someone who comes along to the party after it’s started. So X is a parent already and then teams up with Y. Y is a step-parent. By contrast, I think where X and Y team up first and then decide to become parents and then a child is brought into the relationship most people wouldn’t use step-parent. It’s a bit curious, because Y might not be recognized as a parent at all, but the choices are usually seen to be parent/non-parent. Step-parent isn’t in the mix.

        I think I understand why you want to say “step-parent.” It’s because in your view the original parents are the genetically related folks, right? And so in instances where one of the married couple is genetically related and the other is not, you’d only start with parentage for one? The other would not be a parent.

        I also generally think of step-parent as more of a social than legal category. Step-parents tend to have minimal to no legal rights vis-a-vis the child.

      • I believe that hetero and homo couples are differently situated with regard to the presumption of paternity.
        Among hetero couples, the vast majority of presumed parents are actually parents, and the government would rather let the few exceptions slip by institute massive DNA testing, violate citizen’s rights, instigating possible costly legal process- especially since the benefit to exposing those few couples is vague and undefined and circumstances can differ markedly from family to family with no way of knowing the damage that could be caused v. the benefits.
        Among gay couples, there can be no presumption to begin with. Acknowledging that fact doesn’t involve any government action.

  3. Yes I don’t get it. A person is a parent if they have offspring. Being married to a person that has offspring does not make you a parent unless that child is also your offspring – it makes you a step parent. Any laws on the books that allows people to purport to be parents of children they are not maternally or paternally related to – without court approval and without the consent of the parent they are purporting to be…those laws need to be changed. Marriage bonds you to your spouse, you are bound to your child whether or not your married to the other parent or married to other people. Thats why parenthood outlasts a marriages that end. Parenthood exists long after all the parties involved are dead and buried. Its kind of an eternal truth once your genes are reproduced in another person.

    It is not necessarily better for a child’s parents to be married. It should not be legal to alter the facts when they are less than ideal for the child, Facts should be at minimum be documented and then adjusted accordingly thereafter. Nobody should have the right to say they are related to a person in a particular way when they are not just because it might be better for the child. There are procedures for proving that the child would be better off with the spouse assuming the fathers roll and responsibilities and those procedures should be followed and documented.

    I’m not opposed to marriage between people of the same gender. I am opposed to any attempt for the spouse of a mother to perpetrate to be the parent of the mother’s child without court documented consent of the father and the adoptive qualifier or some sort of qualifier. Unqualified title of parent needs to be reserved for parents who created the child and therefore created the title and no permission is needed.

    To me the idea that people who are married are always the parents of children born durring the marriage is just as bad as black market adoption where women pretend to be maternally related to the child saying they gave birth at home to a baby they bought in a back alley somewhere. The consent of the child’s real parents is not officially documented anywhere and according to all the documents it will appear that the woman registering the birth of the child conceived the child with her husband or some other guy willing to sign a voluntary admission of paternity. Yes its true in the eyes of the law she will be the mother of that child and her husband will be the father. The child will grow to think it and so will the community around them – but its a lie. At best they are the adoptive parents but its a back door illegal adoption, they came by the title through deceit fraud and concealment of the facts. Somewhere there is a real mother and father who may think their child was kidnapped or who should be jailed for selling their baby on the black market.

    So ok for same gender marriage but we better hurry up and change the law that would allow two women or two men to say they are both the parents of children born during their marriages. Its bad for heterosexuals and its bad for gays and lesbians. bad bad bad. Everyone has to tell the truth we all have to play by the same rules.

    • For them moment, all I want to do is note that there has been a lot of discussion about the marital presumption here on the blog over the past couple of years. You can find some of it here–https://julieshapiro.wordpress.com/2010/05/06/the-marital-presumption-at-work/ and if you poke around you’ll find more. It’s rarely an irrebutable presumption these days–which means that in the right circumstance it can be overcome. But I’d be that the single most common basis on which men are recognized as legal parents of children is the presumption. For good or for ill, it’s very commonly in play and it does a lot of work for us.

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