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.