Next week (Tuesday and Wednesday) the United States Supreme Court will hear argument in two major cases that concern access to marriage for lesbian and gay couples. Together these are surely the most important gay rights cases to reach the Court since Lawrence vs. Texas in 2003. (In Lawrence the Court struck down the Texas sodomy law.)
In one of next week’s cases (United States vs. Windsor) the constitutionality of DOMA will be at stake. DOMA (“The Defense of Marriage Act”) bars the federal government from recognizing same-sex couples as married even when their marriages are perfectly lawful and recognized in the state where they live. DOMA thus creates an exception to the usual rule that couples deemed to be married under state law will be recognized as married by the federal government.
The other case to be heard next week is Hollingsworth vs. Perry. This is a case challenging the constitutionality of California’s Proposition 8. Prop 8 amended the CA state constitution to provide that marriage could only be between one man and one woman–which effectively reversed an earlier ruling by the CA Supreme Court which had held that the CA constitution required access to marriage for same-sex couples. The assertion in Hollingsworth is that enactment of Prop 8 violates the federal (as opposed to the state) constitution.
Now all this may seem rather far afield from the usual topic of legal parenthood that is my focus but, as I have noted before, marriage and parenthood have become quite entangled. On the on hand, gay rights advocates frequently argue that since (as opponents must concede) marriage is good for children and since lesbian and gay couples have children, allowing same-sex couples to marry is better for those children. And by contrast, they argue, barring marriage harms the children, who are of course entirely innocent parties. (These arguments make me slightly crazy for a variety of reasons I will not discuss just now.)
At the same time, those opposed to allowing same-sex couples to marry also invoke children, but in a different way. They typically insist that it is important that children be raised by their genetically related parents (an rgument certainly echoed by commenters here on this blog), that marriage is designed to encourage and stablize this arrangment and since only one man/one woman couples can possibly achieve it, only they should be allowed access to marriage.
The notion that married parents raising genetically related children represents the ideal may not seem particularly radical–indeed, I suspect might be what comes to mind for many people when they think of “traditional families.” Then all the other configurations get lumped into that “non-traditional family” category.
To be very clear, I do not agree that the married/genetically related parent family is the ideal or even that most people think it is the ideal. I only mean to suggest that many people think of it as the norm–the most typical sort of family, if you will. But this recent story about the Supreme Court–run in anticipation of next week’s argument–made me think about whether even that is true. Even among the nine supreme court justices–a small group who really do have much in common–there is a diversity of family forms.
It’s not that I think all family settings are equally good for children. I have no doubt that children who are raised in violent households are have a much harder path to walk than do those raised in harmonious ones. But I do not see the diversity of forms–single and plural parents, parents who are romantic partners and parents who are not, parents who are genetically related and those who are not–as problematic. It seems to me that diversity reflects the larger diversity (and richness) of our society. Thus it seems to me far more important to think about how to help the diverse families in our society thrive.
Labelling some family forms second-best (and implying that there are therefore others worse than that) doesn’t help, but it seems to me that’s exactly where some people take the marriage arguments:
Certainly adoption in families headed, like Chief Roberts’ family is, by a heterosexual couple, is by far the second-best option,” said John Eastman, chairman of the National Organization for Marriage.
It seems to me that Professor Easton has in mind a hierarchy of families where some are inherently better than others. On some level he may mean this to be a theoretical ranking–in theory those genetically related parents are best, followed by the heterosexual adoptive families, followed perhaps by the two-parents-of-the-same-sex adoptive families followed by the dreaded single parent? But there are real families here in all of those categories and variations among them, too. Rating a family as second-best (or worse) simply because if its configuration seems to me entirely unproductive–and worse than that, harmful.