Tying Marriage to Children and Children To Marriage

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.



4 responses to “Tying Marriage to Children and Children To Marriage

  1. Julie – the second-best part of the statement. Adoption for the babe will always be the second-best option for a babe vs. staying with the mother as the first-best option. I doubt I will ever feel differently. The separation from the mother and father has consequences – some immediate – some long-term – a child does not escape unscathed.

    It has nothing to do with labelling family forms – it is about what is the best for the child. If the best option isn’t possible, then the next option (second-best option) becomes the de facto best option for the child. The family isn’t less – they just weren’t the first-best option. It isn’t a vertical scale – it’s about the child and the child’s needs – not the adult’s.

    I don’t tie marriage to procreation.

    I do tie stability and quality of the relationships within the family home to what is good for a child.

  2. While this veers off from the topic of parentage, it’s something I thought about when reading this post. I really do not like the pedestal marriage has been placed on in this society. It’s seen as the be all, end all – if you don’t want to find someone and get married, many people wonder if there’s something wrong with you. Perhaps I am biased, since I am single, love being single, and can’t see myself ever getting married – and a lot of people just don’t get that, they totally cannot get why I’d prefer being single. What I think marriage should be is just a way for a couple in love to celebrate their formal commitment to each other with their friends and loved ones, if that’s what they want to do. But instead it’s seen as something everyone should strive for and is the only way to access certain legal benefits and tax breaks, which I don’t really agree with. It seems a household consisting of a married couple is seen as superior to any other household, whether there are children or not. Gay marriage may give more people access to these benefits, but that still leaves the people who might live in a household with someone they can’t marry (or would never want to marry, in the case of platonic friends), but who financially assist each other in running the household – two single siblings living together, or an adult child living with and helping their widowed elderly parent, or two non-romantic friends who decided to be long term roommates, etc etc.

  3. Rebecca
    Rebecca; on the subject of a child taking care of a parent or two siblings being denied tax breaks I think you are misunderstanding what marriage does. Marriage provides two adults from separate families, the benefit of being treated as a family unit, by the government, by employers and other institutions. Two adult siblings or an adult child and parent do already of course have those tax breaks of being considered family like if you are taking care of a dependent relative you claim that on your taxes. Two non relatives don’t have that break unless they get married and form a temporary dissoluble family of their own. Siblings and parents and children are already legal kin they can visit one another dying in the hospital or be tracked down to inherit a million bucks if their kin dies with heavy pockets and no will. They could already add them to medical insurance as dependent relatives etc. So single people living with their relatives are not denied the benefits of being family with their family. Single people are denied the benefits of being treated as family with someone who is not family if they cannot find someone who will agree to do that with them. So really they are not denied anything. You either have a buddy to hook up and play house with or you don’t. If your an American Citizen you can sponsor your non American Citizen sibling or parent for citizenship cause your family. Can’t do that with a friend but can do it with a spouse because you got a license to be treated like family.

    I want to see dna be sufficent evidence to establish kinship in the instances of birth records to the contrary. So that no matter what false information was put on a birth record you can always say to the government this is my father or sister or whatever and expect to be treated as such so long as you can pass a dna test confirming the relationship. Its not singles that are denied the benefits of being treated as a family is people with falsified records.

    Anyway marriage gets two unrelated people the chance to have the benefits that are afforded to people who are related for real or by adoption.

    • The biological relatives sharing a household would only get a tax break if one was a “dependent” of another, and not if both were contributing somewhat equally to the household.

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