The two core legal relationships in family law are marriage (legal relationship between adults) and parenthood (legal relationship between adult and child). Over the years there’s been a lot here on the blog about the connections between those two relationships. But there seem to be an infinite number of ways to come at this and recently I’ve been pondering a couple of slightly different ways to think about this.
First off, I wanted to briefly comment on a tension that arises about the connection between marriage and parenthood in litigation around access to marriage for same-sex couples. There’s been a lot on the blog about the marriage cases and the role parenthood plays in them. The very recent MI opinion is a fine place to see this.
On the one hand, both side in marriage litigation agree that it is best to raise children within a marriage. Now I find this a rather problematic argument to rely on (and I’ll come back to that shortly) but like it or not it is a view that advocates and opponents of access to marriage share. And given that, it’s unsurprising that it’s a view that is affirmed in virtually every court opinion.
(For those who say that marriage should be for different sex couples only, the argument is that only different sex couples can procreate and so only they need to have access to the optimal child-rearing institution. For those seeking access to marriage, the argument is that lesbian and gay people are, in fact, parents and so it’s only fair to their kids to allow them into the optimal child-rearing institution.)
But advocates for marriage access also argue that any necessary connection between procreation and being married has been severed. Unmarried people have children–both as couples and as single people. Illegitimacy is no longer so stigmatized. And married couples may not have children at all. (Same-sex marriage supporters need this argument because it allows them to argue that the fact that same-sex couples cannot procreate on their own shouldn’t bar them for marriage.)
It may seem that there’s some tension here between the assertion that raising children within a marriage is best and also asserting that there’s no connection between having children and being married, as supporters of access to marriage for same-sex couples do. But perhaps the tension is largely illusory. The second point here (that’s the decoupling one) is meant to be descriptive–it’s an observation about how people are behaving. Additionally, the two points have different foci. One is about producing children (which, it is argued, is no longer inevitably linked to marriage) and the other is about raising children (which, in the view of all the litigants, should be linked to marriage.)
This brings me to my second observation. It seems to me that as a society we remain deeply ambivalent about the connections between having children and being married. While we’ve certainly made progress in diminishing the discrimination experienced by children of unmarried parents (children once labeled “illegitimate” or even “bastard”) there is still a broad social preference for raising kids within a marriage. Both sides in the marriage litigation agree on this, when they don’t agree on much else.
One result of the marriage litigation is to reinforce the notion that children should be raised within a marriage–that it is better for the kids. (This the problematic point I raised above.) That’s an argument that reaches well beyond the same-sex marriage question.
For instance, in the past month or so we’ve talked about a string of cases here where a woman gave birth to a child genetically related to one man while she was married to another. In these cases the genetic father sought to claim parental rights. And generally the genetic father lost out to the husband, even though the husband is not genetically related.
What explains these cases? We’ve talked at length about the marital presumption but there’s a simpler way to think about it. Perhaps what explains the outcomes is the assumption that it is better for the child to be raised in a marriage if that’s possible. In fact, this argument is pretty explicit in some of the cases. The state chooses husband and wife as legal parents over umarried man and wife as legal parents precisely because of that “married parents are better” assumption.
What’s fascinating to me is that the same conviction–that marriage is better for children–lies behind both the rapidly expanding lists of states allowing same-sex couples to marry and behind the generally disfavorable treatment of unmarried genetic fathers when they are up against husbands. I just hadn’t really noticed that before.