NY News: When Parents Can Marry, Do They Have To?

Starting today, same-sex couples can get married in New York.   There’s lots of news coverage to browse.   But this one essay–which actually appeared earlier in the week–is what I’ve been thinking about.

I recognize, of course, that gaining access to marriage in New York is a huge political victory for gay and lesbian people and their supporters.   Thus, these early weddings are cause for more than just personal celebrations and that’s the general theme of some of the news coverage.   But as readers of this blog may recall, I also have some abiding concerns about the way marriage operates in our culture.    I’ve written about these before and they’ve been developed by others as well.

Here is what worries me.   I think it’s great for same-sex couples to have access to marriage–it is part of being treated equally–but I think marriage should not be compulsory or required.  In other words, a couple should be free to marry or not, as suits them.   (There’s a long argument that goes here and you can read about it in a published article I wrote.  (Registration is required to get to this but it is free.))

But look at the way people are talking about marriage–go back to the essay from earlier this week.  Doesn’t the essay suggest that if you are parents, then being married is necessary to the well-being of your children.   Otherwise, like Maeve and Georgia, your children will feel like you’re part of a second class family, which cannot be good.    Indeed, John  Feinblatt and Jonathan Mintz are model parents and so they

“care deeply that the girls feel fully integrated into society and see it as just.   Sunday’s ceremony goes a long way toward that.”

Who can fault them?  And what kind of parents, in the face of this reasoning, would choose not to marry?  How will we judge parents who choose not to marry.

This isn’t an issue exclusive to same-sex couples, of course.  Indeed, it is one that different sex couples have had to contend with all along.   How many unmarried different sex couples do you know who are parents?   How many different sex couples do you know who got married when they decided to have children?

Same-sex couples have, in an odd way, been sheltered from this pressure because marriage wasn’t an option.   But now it is an option in NY.   And what I mean to suggest here is that it isn’t simply an option.  It is seen to be the right thing to do if you are parents and hence, is virtually required for the good of your children.  Whatever your political critique of marriage as an institution, doesn’t that have to be set aside in favor of your ordinary parental concern for the well-being of your kids?   Wouldn’t it be selfish to refuse to marry because of some personal political analysis when getting married would allow your kids to feel fully a part of society?

I’m sure the media will have many stories about same-sex couples getting married in New York and no doubt many of them will include heart-warming references to the children who can at long-last participate in their parents’ weddings.  I’d like to see a few stories about same-sex parent couples who are choosing not to marry, though.   I wonder if there will be any.   I rather doubt it, but one can always hope.

34 responses to “NY News: When Parents Can Marry, Do They Have To?

  1. Katherine Franke

    Julie – thoughtfully and carefully said – as always. It’s been hard to raise concerns about the pull toward matrimony on the weekend in which so many in our community are celebrating a newly won, and long longed-for, right.
    Why can we see the wrong of state-sponsored homophobia that animates DADT, and not feel like we all have to run down and enlist once it is fully repealed, but somehow we’re under an obligation to marry now that we can?

    • I think we are (as it were) hoist on our own petard. Arguing that marriage was good for children was critical to gaining access to marriage–after all, denying access to marriage was unfair to innocent children. So now there is access and if, as was argued, it is good for children, then it follows that people with children ought to get married, whatever their personal feelings about it. There’s no analogous argument about the military–people didn’t argue that it was good for everyone to actually serve. Perhaps that’s a good thing.

  2. From the beginning of the article: “a little kid knows that having two dads is different. Eight-year-old Maeve certainly did. ”

    Aha. and now that aforementioned two dads have a marriage certificate from New York State hanging on their wall, of course Maeve will suddenly come to the conclusion that having two dads is not different at all! (sarcasm alert…)

    • I’d say the idea is that Maeve will continue to think that having two dads is different–that’s gender at work and that difference will hold up for a long time. But she will not feel that her family is less worthy than other families. Her two dads can be (are, picture is in NYT) married just like other kids’ parents. While I stand by my comments about marriage, I do think it is true that you can feel different and equal or you can feel different and unequal and that the former is better than the latter.

  3. I might add that while Maeve my not have other friends with two Dads, she 100% certainly has plenty of peers with parents who are not currently married to eachother. So lets stop pretending its the legal marriage that makes all the difference.

    • …. The legal marriage may be the primary issue for the DADs, which they are projecting on to their children. (Projecting is a common pitfall of parenting, whether gay or straight….)

      As for whether gay’s now have to get married, well yes Julie they do. after figuring the childrens best intersest areguments so frequently in pro-gay marriage advocacy, including on this very blog, it would be tantamount to declaring themselves bad parents if they don’t.

      • That’s exactly the dilemma I’ve written about. It’s worth thinking about the point in detail. Not all gay and lesbian advocates (or gay and lesbian people) made those arguments. A small number of activists and lawyers trying to win cases and sway legislators made them–partly because they are such good arguments.

        But there have always been lesbian and gay couples who reject marriage and many of them questioned the reliance on the “good for kids” argument. Nevertheless the arguments got made, and ultimately largely accepted. Now the pressure to marry is felt by those who made the arguments and those who didn’t make them alike. Perhaps you see some justice in the former group being pressed to follow up on what they argued. I tend to think more about the latter group.

        • The majority of heterosexual parents, even unmarried ones, believe it is better for their kids to be married. They generally point to what they see as extenuating circumstances; generally a poor relationship with their kids other parent.

          Personally I don’t believe that can be extrapolated to homosexual parents since the research talks about parents being married to EACH OTHER.

          • Although i’ve not seen much in the way of research I’m inclined to accept your statement about what the majority of heterosexual parents think. That’s because I’m inclined to believe that people generally hold this belief. But for me this says a good deal less about the research and a good deal more about what people believe.

            I’m not at all sure what to make of your second comment. The idea for most same-sex couples who are parents and who are contemplating marriage is that they would marry each other–like the men profiled in that commentary. Is your point that in your view they are not actually both parents–because you take DNA to be the key? If that’s the case, then we are just back to the same disagreement. Further, I think many people–including many heterosexual parents–would say it is better for adoptive parents raising kids together to be married, too. I assume that’s how state’s like Louisiana come to limit joint adoption to married couples only. And this in turn suggests to me that the preference for married parents is not restricted to instances where biologically related parents marry each other.

        • Julie but don’t you belong to the former group? Didn’t you yourself put forth that argument? I seem to recall it that way. Are you suddenly changing tunes or were you just quoting others, not your own personal opinion?

          • Assuming I’m understanding your question correctly, I count myself among the marriage skeptics–which is to say that on\ principle I would rather not get married. This is not because I am unwilling to make a commitment, but rather has to do with a principled critique of the institution. What I wrote about in the essay I mentioned–Reflections on Complicity–is about the tension this creates–because as a lawyer you generally try to make the best arguments you can for your cause and the marriage is better for kids argument is a persuasive one to many people.

            I would much prefer a world where people raising kids together didn’t need to get married–though one where they could make that choice. As it stands now, choosing not to marry is a more viable option for those who have money and access to lawyers, because we can replicate many of the legal advantages that come with marriage. But I do feel the pressure to get married and I wonder at what point I would compromise my principles.

            • I am with Julie on this. I must say its not terribly romantic though. Not much fun to be on the receiving end of all that affection either.

              I do not think marriage has anything whatsoever to do with children. Children were being born long before anyone was getting married. In fact that is not even a chicken/egg kind of thing; there had to be people first before there could be marriage which means, its something adults do for themselves not for their children.

    • This would be a good moment to dig out the statistics on the percentage of two different-sex parent families where the parents are married.

      FWIW, there are two separate sets of reasons why legal marriage might matter for parents. First, there are actual legal advantages–discussed elsewhere. Second, it seems quite clear that it makes a psychological difference for some people–people like Maeve. From what I can tell, it really does matter to her.

  4. “And to avoid any sense that either girl belonged more to one father, or vice versa, the couple asked a doctor to make sure that each of them sired a child but not to tell them whose was biologically whose, unless medically necessary.”

    Clearly they are not all that certain that genetics is meaningless.

    • infuriating. You know I hate this.

    • Indeed. This is one of the paradoxes of ART, from my point of view. The industry has clearly driven the development of a market where genetic material is (effectively) bought or sold. But at the same time, many who use ART go to some lenghts to ensure some sort of genetic connection. These conflicting impulses certainly makes it hard to put together all the pieces of the puzzle.

  5. The point of all these comments is not to say that the children will be miserable traumatized or resentful. I don’t have a crystal ball.
    My goal is to point out the massive level of denial going on the part of the adults in the scenario. Heck, with all that denial the adults seem far poorer adjusted than the kids….

    • Who is in denial? I think the people who believe the argument that marriage is better for kids are probably getting married. The people who never believed the argument are somewhat stuck. But that’s not denial, as far as I can see.

      • The primary denial, the most blatant omission, is in the failure of to acknowledge the elephant in the room – the fact that Maeve has no mother.

        Second; what I already said- the denial of the implications of their own behavior: the emotional impact of genetics

        • It’s true (from my point of view) that Maeve has no mother. But Maeve does have two parents who are working together to raise her. Does the gender of those parents matter? This, it seems to me, is one critical question two parent same sex families highlight. What is the link between gender and parenting?

          • She’s a normal human being with a mother and father but one of them is absent from her life. That is it. Long and short of it, those are the breaks. So one parent is raising her and they get married it makes that person a step parent and her a step child and if he wants to have an experience that has the legal recognition of parenthood he should do a step parent adoption so that everything is above board. And why would she not deserve proof that the woman who created her knows about her and agreed in court to allow someone else to raise her? I think everyone deserves proof if they want it that the people on their birth records are related to them are their genetic parents and if they are not those people had better be able to produce records of a legal adoption – I really think the kid deserves the right to request a wet signed consent by their genetic parent under any circumstance where someone else is going to lay claim to being their parent, Documentation, Marrying her parent makes him committed to be a spouse it conveys nothing of a committment to be a parent figure to her.

  6. You once sarcastically requested my crystal ball because I said that a child would be so angry if they found out their mother fought to prevent their father from having any contact in favor of supplanting him with her husband – a step father.

    I do have a crystal ball, and so do you. It is not these people’s place to orchestrate the reality of the children they are raising even when they are in fact actually the parent of the child – not their place to pretend their partner or spouse is the child’s parent, equal in force to themselves when they know full well that person would not be enjoying that title were it not for the fact that they granted them permission.

    Parents don’t require permission from or acquiescence of any other person in order to be related to a child as a parent and have a duty to perform parental responsibilities. Step parent’s have the permission of the person they married to be in their step child’s life. Adoptive parents have the permission of both parents and the court to be in their adopted child’s life. Quasi-marital parents gain legal recognition to be in their quasi-marital child’s life without the permission of the parent they are replacing and without court approval; sometimes they attain quasi marital children without their own knowledge and consent. Quasi adoptive parents gain legal recognition to be in their quasi adoptive child’s life without the consent of the parents and without court approval, sometimes they gain quasi marital children without even their own knowledge or consent.

    If your raising a child that you did not create and everyone is humoring you by calling you that child’s parent – cut it out.

  7. I think there are two importantly distinct claims here that ought to be distinguished, though the NYTimes article doesn’t distinguish them:

    Claim 1. Having your relationship be demeaned by the state and society (insofar as you and your partner are denied access to the most prominent means of social and legal recognition for a relationship) is bad for children you may be raising.

    Claim 2. Not being married is bad for children you may be raising.

    I agree that Claim 2 is problematic. So much of what people tout as the benefits of marriage for child-rearing is bound up with selection effects, so it’s far from clear that any given couple’s children stand to benefit from marriage. But I don’t think Claim 1 is problematic: I think it’s probably true. Being raised by a couple that has voluntarily chosen to not be married is one thing. Being raised by a couple that has been officially designated as the legal inferior of other couples is quite another.

  8. So say the adults, anyway.

  9. I know less is more but I can’t leave it at that; I find this argument too infuriating; so utterly illogical in a very self serving way, what I can only refer to as a mass collective narcissim on the part of adults with regard to children’s welfare.
    Do you really mean to say that a symbolic recognition of the adults relationship with EACH OTHER (claim 1) is better for children’s welfare than the actual behavior that being married implies (claim 2), that actually has real life effects on childrens life, namely a legally binding commitment to stay together and raise the children together. Get real. Stop looking in the mirror.

    • I don’t think same-sex marriage has much direct impact either way. It is unlikely that same-sex marriage will fundamentally alter the family dynamics of already established families, so we are talking about “symbolic” effects regardless. If there is some material marriage benefit that, given family circumstances, would make an important difference to the family’s well-being, the answer probably comes out differently, but then we are no longer talking about a general principle (“Children benefit when their parents are married”) but rather about a case-by-case inquiry (“Children sometimes benefit from certain rights and privileges our law ties to marriage.”)

      It seems to me that the main difference here is that you think marriage makes an important “real life” difference on the lives of children, and I am more skeptical. The problem, as I suggested in my last post, is that purported “benefits” of marriage are often equally or better explained as selection effects. Couples like Mr. Feinblatt and Mr. Mintz have already committed to stay together and raise their children: that’s part of why they want to marry in the first place. The costs of divorce are unlikely to stop them if that commitment breaks down, and those costs do not in any case prevent (and may in fact only entrench) high levels of spousal conflict and unhappiness that can also harm the well-being of children.

      The harms caused by social stigma, however, and correspondingly the benefits of equality, have nothing to do with family dynamics, at least not as I am thinking about them: they have to do with the sorts of concerns referenced in the article linked to above, the capacity of the children of same-sex couples to feel accepted in and integrated into society, rather than stigmatized by it. The fact that same-sex marriage bans do not directly target the children of same-sex parents is beside the point; children, especially young children, identify strongly with their families.

      • Well said–I wish I’d read it before I offered my own paltry explanation.

        Let me amplify the point about selection effects. Right now some heterosexual couples get married and some do not. Which of those categories people sort themselves into is not random, of course. Most people who have made a considered commitment to the relationship will sort themselves into the “get married” category, though not all will do so. The majority of those who know their relationships are untenable and unlikely to endure will sort themselves into the “don’t marry” category, though not all will do so. And so if you compare the married/not married groups, you are not actually comparing similar couples. You may be able to produce all sorts of statistics about the differences, but you may just be measuring the differences between those who have made a considered commitment and those who have not- rather than differences caused by being married. That, I think, is some of what is meant by the selection effect.

    • It seems fairly clear to me that thinking you belong to a group of second class citizens is bad for people, including kids. (That’s one of the keys to understanding why the courts concluded that racial segregation of school children was bad.) The idea here is that if your parents cannot marry then you might conclude it’s because your family is less worthy and so are you. That I take it is claim one and I find it hard to disupte that argument.

      Claim two is actually a good deal harder to prove. If two parents have made the actual commitment to stay together and raise a child, it isn’t clear that getting married adds a great deal. And some people get married without making the actual commitments. It might be that to the extent they are statistics, all they show is that people who have made the right commitments are also inclined to marry–which is to say you’ve got correlation and not causation. It’s just very hard to actually show what is actually caused by marriage. .

  10. yet another way that same sex marriage differ from traditional marriage (at least to some)- it’s but a symbol with absolutely no practical implication (but which should nevertheless be privileged and supported by the rest of soicety). Whereas tradtional marriage is all about the practical implications.

    And this from its advocates. With advocates like these who needs detractors.

    • This is really a rather strange way to read the argument I’ve made. I don’t think it’s clear that marriage per se is beneficial to children, regardless of whether the parents are of the same sex or of different sexes. I don’t think our law or our social norms ought to pressure any couple, whether same-sex or different-sex, to get married. You’re the only one who’s drawing a sharp distinction between same-sex marriage and what you call “traditional marriage.” I am talking about marriage, period.

  11. Exactly; many folks such as yourself who make no distinction between same sex marriage and heterosexual marriage appear to have a vastly different understanding of marriage than the traditional understanding of marriage which most certainly has to do with stability and security for childrearing.

    I’m not a scholar but I think the consensus with regard to heterosexual marriage agrees with me regarding , at least it seems so from the prop 8 debates. I agree that one can not authomatically extrapolate the conclusions regarding child welfare to gay folks.

    • There is pretty powerful evidence of correlation. It is much harder to say whether there is causation, and there are some studies indicating that, with a sufficiently wide range of controls, the direct impact of marriage is not significant. Here is a recent one to that effect from the UK: http://www.ifs.org.uk/comms/comm120.pdf

      I don’t want to pursue this much further, but two additional comments. First, there is nothing inconsistent or even difficult about supporting same-sex marriage while thinking that marriage is important for child welfare: plainly, plenty of same-sex marriage advocates actually do think so. (“Parents should be married” does not entail “Only parents or soon-to-be parents should be married,” and certainly does not entail “Only biological parents or soon-to-be biological parents should be married.”) Second, the most important traditional link between marriage and procreation, the rules of legitimacy that tied a biological father’s parental status (and therefore the status and rights of his child) to whether or not the child was born in wedlock, has largely been done away with for at least biological parents. Part of the problem with references to the “traditional understanding” of marriage, and also with the term “traditional marriage,” is that they obscure this important shift in law and practice, as well as others (e.g., the altered legal and social status of sex outside of marriage.)

    • I am inclined to think that this particular point has been pretty exhaustively explored here and I hestitate to try to wedge in one more comment. But “the traditional understanding of marriage” is rather a tricky idea. I don’t know how exactly one figures out what the traditional understanding of marriage is.

      The history of marriage has been quite well documented and for very long periods it had little do to with stability and security for child-rearing. It was at least as much about unifying vast landholding families and consolidating political power. Having children has never been a requirement of marriage. It is increasingly common for people to marry and not have children. Most people would say people not planning to have children or not able to have children have every right to marry.

      This suggests that the current understanding of marriage–of what marriage is about–isn’t entirely tied to stability and security for childrearing. I think popular depictions of marriage support this, too. Marriage is the great romantic union of two people. It’s about finding your one true love and riding off into the sunset. Maybe there are kids, maybe there aren’t, but it seems to me it is mostly about the grown-ups and romantic love these days.

      All of which is to say that, at least for a lot of people, the well-being of children is not and has not been the main point of marriage. The contrary notion is one that has largely been formulated in the most recent wave of controversy around access to marriage for same-sex couples. That’s not exactly traditional either.

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