Less Perfect Unions: The Argument against Same-Sex Marriage That Hasn't Been Tried in the Courts

Article excerpt

HERE'S AN ETIQUETTE question for the new age: You are introduced to a couple and their little girl. The men are clean cut, early middle-aged. Their child is well behaved and, by all appearances, well taken care of. Is it rude to ask the men how they came by their daughter?

Same-sex couples first challenged state marriage laws in the 1970s. Courts in California, Wisconsin, Kentucky, and Minnesota tersely ruled that they couldn't marry because same-sex marriage was a definitional impossibility.

A second wave of same-sex challenges to marriage laws began in Hawaii in the early 1990s. The state attempted the old defense that same-sex couples could not wed because of "their biologic inability ... to satisfy the definition of the status to which they aspire." The high court of Hawaii rejected the state's argument as an exercise in "tortured and conclusory sophistry."

What a leap from the courts' confident dismissal of such claims in the 1970s. The main reason for this sea change has been the presence of children in the lives of gays and lesbians. While same-sex advocates insist that marriage is not inextricably linked to procreation, every victory for same-sex couples in the courts that has accorded marriage or marriage-like rights statewide, has hinged on the fact that children were involved.

The essence of marriage in this country has always been that two people pledge publicly and to each other to bind their lives together, to take care of one another and any children their sexual union produces. Although same-sex advocates demand the freedom to marry--the recognition of what they view as a constitutionally guaranteed liberty interest--the essential promise of marriage is a loss of freedom. A married person is no longer solely concerned with his own life but has to worry about another's--and, if the couple is blessed with children, with that many more lives.

The state supports and honors this promise. While marriage does not require procreation, the status the state accords the couple is linked to the promise that they will not abandon, give away, or leave their child to the public charge.

The right to marry, then, is not just the right to the rather recent multitude of financial and social benefits but the right to support and recognition from the state of one's promise to fulfill what is at once the most simple and obvious of duties and the most profound, time-consuming, and liberty-killing.

This essential promise of marriage still holds, except in Massachusetts--which brings us back to the opening etiquette question. Is it rude to ask the two men how they came by their child? If they are married, what precisely is the state of Massachusetts honoring and supporting by sanctioning their marriage? Their devotion to one another, yes, but no longer the ideal that one should stick around and take care of one's child. It's clear that at least one of the little girl's biological parents has either given her up or died. Even if the child was deliberately conceived via reproductive technology, a woman somewhere is willfully without her biological child--perhaps in a spirit of helping the men but in a spirit nonetheless contradicting the ideal that no parent should relinquish his or her child. Perhaps the little girl is adopted. Agencies assisting adoptive parents advise them to do their utmost to make the biological parent formally relinquish all rights to his child. Marriage in Massachusetts, then, no longer upholds the ideal that society is served when parents keep their children but, in effect, encourages its contradiction.

If marriage no longer honors this ideal, our culture is left with no institution that does. That is what would be lost in expanding marriage to include same-sex couples.

Focusing on this loss may be the only viable legal argument left to defend traditional marriage, given changes in constitutional jurisprudence regarding the rights of homosexuals. …